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3fn t\^t (Hanrt of Clatma. 



Term, 1910-11 



The Yankton Sioux Indians 1 Original petition. No. 
V. 31253. Filed No- 

The United States. I vember 7, 1911. 



To the honorable the Chief Justice and the Judges of the 

Court of Claims: 

Your petitioners, the Yankton Sioux Indians, respect- 
fully show and represent unto your honor that — 

I. 

The Yankton Sioux Indians, the petitioners in this case, 
comprise those persons who were parties to the treaty 
between the United States and the Yankton Sioux In- 
dians made and entered into in 1858 (11 Stat., 743), 
ratified February 16, 1859, proclaimed February 26, 1859, 
being also the persons described in article 16 of the treaty 
made and entered into with the Yankton Sioux Indians 
August 15, 1894 (28 Stat., 318), together with those m- 
dividuals, heads of families, and other legal representatives 
entitled to receive the benefits of said treaties. 

II. 

That the Yankton Sioux Indians are either the original 
parties to said treaties above referred to or their descend- 
ants, and L. B. French has been employed by the United 
States to represent their interests in the claim which is 
the subject matter of this suit, he being the attorney 
whose name is appended to this petition. 



t 






Z.5- 



III. 

THE CLAIM. 

Your petitioners further protesting that the matters 
of difference between themselves and the United States 
have been fully and finally adjudicated by the treaties 
above referred to and by certain acts of the Interior 
Department of the United States, and certain acts of the 
Congress of the United States to which reference is here- 
inafter made, and now especially disclaiming that they 
have any purpose to evade the result of said treaties and 
acts of the Interior Department and laws of Congress, 
state that they claim from the United States the full 
interest, title, ownership, and right of possession of said 
tribe of Indians in and to the following lands and premises, 
to wit: The lands described and indicated on the town- 
ship plats of the Government legal survey thereof 
approved August 15, 1872, by the surveyor general of the 
State of Minnesota as lying in sections 1 and 2 of township 
106 north, range 46 west, and sections 35 and 36 of town- 
ship 107 north, range 46 west of the fifth principal 
meridian containing 648.2 acres, more or less, and 
embracing the red pipestone quarries. 

IV. 

JUBISDICTION OP THE COURT. 

By an item of the Indian appropriation bill of 1910, 
approved April 4, 1910, it was provided as follows: 

That jurisdiction be, and hereby is, conferred upon the 
Court of Claims of the United States to hear and report 
a finding of fact, as between the United States and the 
Yankton Tribe of Indians of South Dakota, as to the 
interest, title, ownership, and right of possession of said 
tribe of Indians in and to the following lands and prem- 
ises, to wit: The said lands above described and indi- 
cated by the township plat of the Government legal 
survey approved August 15, 1872, by the surveyor gen- 
eral for the State of Minnesota as lying in sections 1 and 

D. of D. 
SEP 29 1917 



2 of township 106 north, range 46 west, and sections 35 
and 36 of township 107 north, range 46 west of the fifth 
principal meridian, containing 648.2 acres, more or less, 
and embracing the red pipestone quarries. Proceedings 
shall be commenced by petition in the name of said 
Yankton Tribe of Indians, which petition shall be verified 
by the attorney or attorneys for said Indians. The pro- 
ceedings shall in all respects be conducted without cost or 
expense to said Indians, and the United States, through 
the Secretary of the Interior, shall furnish without cost 
to said Indians a competent attorney or attorneys to 
appear for and represent them in said proceedings, the 
attorneys' fee therefor to be fixed by the Secretary of the 
Interior. 

In an item of the appi'opriation for contingent expenses 
of the Bureau of Indian Affairs passed and approved 
March 3, 1911, there is found the following: 

There is hereby appropriated the sum of $5,000, or so 
much thereof as may be necessary, to be immediately 
available, for the purpose of defraying the costs and ex- 
penses, including the compensation of counsel, in the pro- 
ceedings authorized to be brought in the Court of Claims 
by provisions in section 22 of the Indian appropria- 
tion act for the fiscal year 1911, approved April 4, 1910, 
between the United States and the Yankton Tribe of 
Indians of South Dakota, to determine the interest, title, 
ownership, and right of possession of said tribe of Indians 
in and to certain lands and premises therein described, 
said section being found under the title of Minnesota, 
section 8. 

V. 

The treaty above referred to as having been made in 
1858, so far as relates to this matter, reads as follows: 

Art. VIII. The said Yankton Indians shall be secured 
in the free and unrestricted use of the red pipestone quarry 
or so much thereof as they have been accustomed to 
frequent and use for the purpose of procuring stone for 
pipes; and the United States hereby stipulate and agree 
to cause to be surveyed and marked so much thereof as 
shall be necessary and proper for that purpose, and retain 
the same and keep it open and free to the Indians, to visit 
and procure stone for pipes so long as they shall desire. 



VI. 

The treaty made between the Yankton Sioux Indians 
and the Government of the United States, made in 1892 
and ratified in 1894 (28 Stat., 318), being article 16 of 
that treaty, reads as follows: 

If the Government of the United States questions the 
ownership of the Pipestone Reservation by the Yankton 
Tribe of Sioux Indians, under the treaty of April 19, 
1858, including the fee to the land, as well as the right 
to work the quarries, the Secretary of the Interior shall 
as speedily as possible refer the matter to the Supreme 
Court of the United States, to be decided by that tri- 
bunal. And the United States shall furnish, without 
cost to the Yankton Indians, at least one competent 
attorney to represent the interests of the tribe before 
the court. If the Secretary of the Interior shall not 
within one year after ratification of this agreement by 
Congress refer the question of the ownership of the Pipe- 
stone Reservation to the Supreme Court, as provided 
for above, such failure upon his part shall be construed 
as and shall be a waiver by the United States of all rights 
to the ownership of the Pipestone Reservation, and the 
same shall thereafter be solely the property of the Yank- 
ton Tribe of the Sioux Indians, including the fee to the 
land. 

VII. 

In the execution of their agreement pursuant to the 
terms of the treaty of 1858 with the Yankton Sioux 
Indians, the United States caused so much of the pipe- 
stone quarry as appeared to be necessary and proper for 
the purpose of the reservation provided for to be surveyed 
and marked. A diagram and the field notes of the survey 
were duly returned, filed, and recorded in the General 
Land Office and in the office of the surveyor general of 
Minnesota. In February, 1860, copies of them were 
transmitted by the Commissioner of the General Land 
Office to the surveyor general of the United States for 
that State, with instructions to lay the same down on the 
map of the State in his office and to respect them when 
the public surveys reached the locality by closing their 
lines upon the reservation. At this time the land 



included in the reservation was not surveyed; but after- 
wards, in July, 1872, after this survey the commissioner 
directed the surveyor general to locate the reservation on 
the official plat in his office from the field notes and plat 
of the original survey, and to transmit authenticated 
copies to the general and local land offices ; or if it should 
be impossible to. locate it from these data, to direct a 
resurvey of the tract, so that it might be located and 
described upon the official plats and its boundaries 
respected in accordance with the treaty. In pursuance 
of these instructions, the surveyor general caused a re- 
survey of the quarry reserved and immediately marked it 
upon the official plats in his office. Its boundaries as 
resurveyed correspond and are substantially coincident 
with the lines of the original survey and embrace the 
section of land above described. 
VIII. 
Prior to this treaty, and ever since the making of the 
treaty of 1858, the Yankton Sioux Indians have occu- 
pied and claimed this tract called the Pipestone Reser- 
vation for the purpose of quarrying stone thereon, and 
have at all times been in possession thereof and claimed 
the right not only to the possession, but also claimed 
the actual ownership of said land, and the whole thereof, 
and stiU do occupy and use said lands. 
IX. 
Mention should perhaps be made of the fact that on 
or about the year 1891 a railroad company ran its rail- 
road across said Pipestone Reservation without^ the 
knowledge or consent of the Indians. Later, the Yank- 
ton Sioux Indians, having ascertained this fact, made 
demand upon the United States Government for the 
money received for said right of way, and the same was, 
May 2 to 9 in the year 1891, paid over to the Yankton 
Sioux Indians by the Government, thus recognizing 
their sole right to the possession, at least, if not the 
ownership, of these lands. 



6 



By the treaty with the Yankton Sioux Indians, ap- 
proved by act of Congress of date August 15, 1894 (28 
Stat. L., 317), it was provided in Article XVI that — 

If the Government of the United States questions the 
ownership of the Pipestone Reservation by the Yankton 
Tribe of Sioux Indians under the treaty of April 19, 
1858, including the fee to the land as well as the right 
to work the quarries, the Secretary of the Interior shall 
as speedily as possible refer the matter to the Supreme 
Court of the United States, to be decided by that tribunal. 
And the United States shall furnish, without cost to the 
Yankton Indians, at least one competent attorney to rep- 
resent the interest of the tribe before the court. 

If the Secretary of the Interior shall not, "svithin one 
year after the ratification of this agreement b}^ Congress, 
refer the question of the ownership of the said Pipestone 
Reservation to the Supreme Court, as provided for 
above, such failure upon his part shall be construed as 
and shall be a waiver of the United States of all its rights 
to the ownership of the said Pipestone Reservation, and 
the same shall thereafter be solely the property of the 
Yankton Tribe of Sioux Indians, including the fee to the 
land. 

The Government upon its part failed to submit said 
question to the Supreme Court of the United States or 
to take any action whatever to decide what right, if any, 
the United States had in said reservation. The Yankton 
Sioux Indians have at all times, as heretofore stated, 
claimed the absolute title to said Pipestone Reservation, 
and the treaty approved in 1894, above referred to, was 
made upon the express condition on the part of the 
Indians that this matter should be settled once for all. 

XI. 

The only other act of the United States in any way in- 
fringing upon the right of the Yankton Sioux Indians to 
the Pipestone Reservation was the building of an Indian 
school thereon, which was built and occupied without 
the knowledge or consent of the Yankton Sioux Indians, 



except that by some accident or inadvertence one August 
Cluensen, on the 15th day of July, 1871, was permitted 
by the land officers of the district to locate scrip upon a 
quarter section of this land which was afterwards, on 
the 15th day of May, 1874, patented to the said Cluensen. 
This patent was set aside by decision of the Supreme 
Court of the United States in the case of United States 
V. Herbert M. Carpenter. Said decision is found in the 
111 U. S. 347. 

XII. 

The treaty of 1894, as herein stated, was duly ap- 
proved and ratified by Congress, and the Government 
took possession of the lands ceded by said treaty and 
has disposed of the same, thereby ratifying the provisions 
of the treaty of 1894. 

XIII. 

Congress has further ratified said treaty and recog- 
nized the validity of the same by entering into a con- 
tract with the Yankton Sioux Indians for a sale of said 
Pipestone Reservation and introducing a bill for the 
payment to the Indians of the sum of $100,000 for said 
reservation. This act, however, was never ratified by 
Congress, nor any appropriation made for the payment 
of said $100,000. 

XIV. 

From the foregoing facts it seems well established 
that the Government caused the public surveys to be 
extended over this region in 1872 and that the Commis- 
sioner of Indian Affairs, having again called the attention 
of the General Land Office to this subject, the lines to 
be surveyed were made to conform with the Pipestone 
Reservation boundary as. already established. Copies of 
these surveys, with plats and field notes, were trans- 
mitted by the Commissioner of the General Land Office 
to the surveyor general of the United States of the State 
of Minnesota, with instructions to lay down the bound- 



8 

aries of the Pipestone Reservation on the map of the 
State; that in July, 1872, the commissioner directed 
the surveyor general to locate the reservation on the 
official plat in his office, from the field notes and plats 
of the original survey, and to transmit authenticated 
copies to the general and local offices, or if it should be 
impossible to locate the boundaries from these data, 
to direct the survey of the tract so that it might be 
located and described upon official plats, and its bound- 
ary respected in accordance with the treaty; that this 
location was held to be a valid location is shown by the 
case already referred to of United States v. Carpenter. 
(Ill U. S., 347.) 

That all the acts of the executive department of the 
offices of the United States in all departments and the 
courts have treated and considered the land in question 
as Yankton Indian Reservation. In confirmation of 
this is a report of Agent Foster of the Commissioner of 
Indian Affairs in 1890. (See Indian Office report, 1891, 
p. 427.) 

That by an item in the Indian appropriation act ap- 
proved July, 1891, authority was vested in the Secretary 
of the Interior to negotiate with the various Indian tribes 
for the surrender and sale of the surplus lands of their 
various reservations, and pursuant to that authority a 
representative of the Government was directed to enter 
into an agreement with the Yankton Indians for the 
cession of their surplus lands. The Yankton Indians, 
however, refused to enter into such negotiations until 
this disputed question of the title to the Pipestone Quar- 
ries should be first determined. The Interior Depart- 
ment, recognizing a valid claim on the part of the Yank- 
ton Indians, which it was as anxious as the Indians to 
have determined in some judicial manner and finally 
disposed of, authorized the provision which was inserted 
in the agreement or treaty, section 16, approved 1894, 

Having made this agreement and placed the same in 
the treaty which was approved, and the United States 



9 

having neglected to provide a means by which the agree- 
ment could be made effectual, the Interior Department 
again sent its representative, under authority of Congress, 
and made another contract with the Indians in council 
for the settlement of the question and final disposition 
of the matters involved in this controversy. 

By the terms of this agreement or contract a contract 
was entered into between the United States and the 
Yankton Indians on the 2(1 day of October, 1899, where- 
by the Government agreed that for the relinquishment 
by the Yankton Sioux Indians of their title to the prop- 
erty in question, and in consideration of its numerous 
agreements in the past, none of which have been carried 
out, it would pay to the Indians the sum of $100,000. 

Plaintiff therefore alleges that the Government can 
not with justice refuse to perform the obligation it has 
entered into and that it is and of right ought to be 
estopped from now claiming that it has any title or 
interest whatever in said lands. 

Wherefore, in view of all the foregoing allegations in 
this petition, your petitioner respectfully shows, states, 
and charges that the plaintiff' is entitled to have said 
reservation and the title thereto quieted in this plaintiff, 
and that the plaintiff has full capacity to institute and 
maintain this action under authority expressly granted 
by Congress for that purpose. 

PRAYER FOR JUDGMENT. 

In consideration of the premises your petitioner re- 
spectfully prays : 

(1) Under and by virtue of the acts of Congress here- 
inbefore cited, and the treaties hereinbefore referred to, 
and the acts of the officers of the Government of the 
United States, that they have leave to file this their 
petition, verified by L. B. French as the attorney for said 
petitioners. 

(2) That under and by virtue of said acts of Congress 
the United States be made a party defendant thereto and 



10 

that the court direct the issuance of its process for that 
purpose, and require the said defendant, the United 
States, to appear and answer to this petition, or otherwise 
defend, within 60 days from the date of its filing. 

(3) That your petitioners have judgment in this court 
declaring that the actual title to said Pipestone Reserva- 
tion is in the plaintiff and quieting their title thereto and 
to the whole thereof; and your petitioner also prays for 
general relief. 

L. B. French, 
Attorney for the Plaintiff hy Appointment of 

the Honorable Secretary of the Interior. 

District of Columbia, 
Washington, D. C. 
L. B. French, being duly authorized thereto, appearing 
before me, the undersigned, states that he has carefully 
read and knows the contents and allegations of the fore- 
going petition, and that they are true to the best of his 
knowledge, information, and belief. 

L. B. French. 

Subscribed and sworn to before me this 7th day of 
November, 1911. 
[sEAL.l John Randolph, 

Assistant Cleric of the Court of Claims, 



O 



11 



Court of Claims of the United States. 

No. 31253. 



YANKTON SIOUX INDIANS v. THE UNITED STATES. 



EVIDENCE FOR DEFENDANTS. 



INDEX. 

Page. 
Report of Interior Department 11 



The Secretary of the Interior. 

Washmgtoii, March 19, 1912. 
The Attorney General. 

Sir : I herewith transmit, for use in the case of the Yankton Sioux 
Indians v. The United States, No. 31253, Court of Claims, the report 
of Inspector James McLaughlin, of this department, dated March 15. 
1912, upon the claim of said Indians as set out in the petition filed 
in said case. 

Very respectfully, Samuel Adams, 

First Assistant Secretary. 
Inclosure. 



Department of the Interior, 

W ashington., March 15., 1912. 

Court of Claims. 

Yankton Sioltx Indians 

vs. 

The United States. 

The honorable the Secretary of the Interior. 

Sir : Under instructions of the 28th ultimo, directing me to inves- 
tigate and examine the claim of the Yankton Sioux Indians vs. The 
United States, No. 31253, Court of Claims, I have the honor to sub- 
mit the following report: 

This is a claim of the Yankton Sioux Indians for the actual title 
of what is familiarly known as the Pipestone quarry, or, technically, 



12 

the land lying in sections 1 and 2 of township 106 north, range 46 
west, and sections 35 and 36 of township 107 north, range 46 west of 
the fifth principal meridian, containing 648.2 acres, more or less. 
More particularly it is a red claystone of fine grain, and when fresh 
quarried is so soft as to be readily carved even by the primitive tools 
of the aborigines. It was a favorite material of the Indians for 
pipes, and tlie pipe being used not only for smoking, but having an 
important place in ceremonial affairs, was, until recent years, much 
in demand. Geogi\aphically the quarry is about a mile and a half 
north of the present town' of Pipestone, in the extreme southwest 
corner of Minnesota, about seven miles from the South Dakota line 
and thirtv from the Iowa border. 

When the Dakota tribe, or, as it subsequently became known, the 
Great Sioux Nation, moved from the headwaters of the Mississippi, 
it became scattered. The Yanktons took possession of the Missouri 
Kiver country below old Fort Lookout, in the region of the Jacques, 
or James, and the Vermillion Rivers, down to where those streams 
empty into the Missouri; while the Sissetons and Wahpetons occu- 
pied the country east of the Yanktons from the sources of the St. 
Peters— or. as it is now called, the Minnesota— River, and Lake 
Traverse, down to the Calumet, or Bix Sioux. Here Lewis and 
Clarke found them in 1803, in the early days of the new Govern- 
ment of the United States; and Alexander Ramsey, governor and 
ex officio superintendent of Indian affairs of the Territory of Minne- 
sota located them in the same position nearly fifty years later. 
(Indian Commissioner's Report, 1849, pp. 83 and 84.) 

In 1851 a treaty was made at Traverse cles Sioux, near the present 
town of St. Peters, Minnesota, by Commissioner Lea, of the Indian 
Office, and ex officio Superintendent Ramsey, of Minnesota, with the 
Sisseton and Wahpeton Dakota, or Sioux, Indians (10 Stat., 949), 
by which the said Indians sold and relinquished all their lands lymg 
in Iowa ; 

" and also all their lands in the Territory of Minnesota lying east of 
the following line, to wit: Beginning at the junction of the Buffalo 
River with the Red River of the North; thence along the western 
bank of the Red River of the North to the mouth of the Sioux Wood 
River ; thence along the Sioux Wood River to Lake Traverse ; thence 
along the western shore of said lake to the southern extremity thereof; 
thence in a direct line to the junction of Kampeska Lake with the 
Tehan-kas-an-data, or Sioux River; thence along the western bank 
of said river to its point of intersection with northern line of the 
State of Iowa, including all the islands in said rivers and lake. 

" The consideration for the cession by the Sissetons and Wahpe- 
tons was $1,665,000, of which $1,360,000 was to remain in trust with 
the United States at five per cent interest, to be paid annually for a 
period of fifty years." 

Out of this treaty sprang all of the contention that has arisen 
over the Pipestone ^quarry. Superintendent W. J. Cullen, of the 
northern superintendency, in his annual report to the Indian Office 
in 1857, said : 

" The ' Great Pipestone ' quarry, the Indian Mecca, which by the 
treaty of 1851 is within the limits of the ceded land seems to be 
the source of great misunderstanding among all these Indians, and 



13 

some provision should be made bj^ the Government to reserve from 
sale or preemption this spot, which for generations they have held 
sacred for the purposes which the name indicates, and as the material 
is in universal use among' them for manufacturing their pipes, they 
consider it more valuable than all the lands they possess.'' (Ind. 
Com. Kept., 1857, p. 52.) 

Again, Kentzing Pritchett, who was appointed special agent on 
July 22, 1857, to visit Minnesota, in connection with the trouble 
growing out of the Spirit Lake affair, in his report of October 15, 
1857, speaks incidentally of the strained relations between the Yank- 
tons and Sissetons, and says: 

•• The sale of the Red Pipestone quarry is a fruitful source of dis- 
cord among them, it always having been considered the common 
property of the whole nation, which no part of it had the right 
separately to dispose of." (Ind. Com'r Kept., 1857, p. 106.) 

The Pipestone quarry is not mentioned in any of the Sioux treaties 
up to and including this time. The only reference to it I can find 
previously is in Superintendent Ramsey's annual report for 1819, in 
which he says, speaking of the Sissetons, or as he spells it, Si-si-ton- 
wan : 

" This band claim the custody of the famous icakan, the Red Pipe- 
stone quarrv, near the Cote des Prairies toward the River Jacques." 
(Ind. Com'r Rpt., 1849, p. 84.) 

Soon after the treaty of 1851 reports of dissatisfaction among the 
Indians with regard to it began to come into the Indian Office, 
Superintendent Francis Hucbeschmann, of the northern superin- 
tendency, reported in 1856 : 

" The Indians living further west — the Yanktoan Sioux — have as 
yet made no treaty with the United States and receive no annuity. 
They have sometimes visited at the payments of the Sissetons and 
AVahpetons and attempted to make disturbance b}^ claiming that 
their country had extended to the Yellow Medicine River, and 
that consequently a part for the Sioux purchase belonged to them." 
(Ind. Com'r Rpt., 1856, p. 38.) 

In 1857 Agent Chas. E. Flandreau, of the Sioux Agenc}^ (Yellow 
Medicine and Redwood), who was on the ground, rej^orted the killing 
above the Yellow Medicine River of one of the sons of Ink-pa-du-tah, 
the leader in the Spirit Lake outrage, in an attempt to capture him 
and some of his associates, and then said — 

" The affair created considerable excitement among the Indians, 
and being just at the time the Yanctons, Cut Heads, and other Indians 
from the plains made their annual visit to the agency to interrupt 
the payments and get what they can from the annuities, our Indians 
became unruly and evinced a decided sympathy for the man we had 
killed. * * * 

" It will be absolutely necessary that some measure should be taken 
to prevent the Yanctons from interfering in the payment of the 
Sisseton and "Wahpeton. 

" The reason of their coming to these payments and the ground of 
their claim is as follows : AVhen the treaty of Traverse des Sioux was 
made the Sissetons and Wahpetons were called upon to sell certain 



14 

lands, which they admitted did not belong to them, and declined 
selling, and were told that they Avere only to sell their right in the 
lands. This the}^ consented to. These lands belonged to the Yanc- 
tons, or they had some claim on them, and the lands were regarded as 
ceded lands, and the Yanctons claim a right to share in the annuities, 
and every payment that has been made has been protracted and dis- 
turbed bv the presence of these Indians." (Ind. Com'r Rpt., 1857, 
p. 59.) 

While this agent speaks in several places in this extract of the 
disturbers as Yanktons, they were evidently a composite lot, for he 
describes them in the beginning as " Yanktons, Cut Heads, and other 
Indians of the plains." Now, the Cut Heads were of the Yank- 
tonais, a fierce and warlike band which roamed the country north 
of the Yanlrtons on the " Plateau du Coteau du Missouri " of the 
maps of that day, and it is almost certain fi'om their character and 
reputation that they were the principal complainants. That both 
bands were present in 1857 is evident from a letter of Superintendent 
Cullen to the Indian Office, written from the Lower Sioux Agency 
July 26, 1857, in which he says — 

" On the 14th instant, on my return to the Yellow Medicine, I 
found all the upper Indians collected together, all who were known 
as annuity Indians, numbering nearly 5,000, with something like 100 
Yancton lodges and 100 Yanctonais." (Ind. Com. Rpt., 1857, p. 80.) 

Again, in his annual report for the same year. Superintendent 
Cullen, in speaking of the Yanktonai Sioux, says — 

" These Indians are the ones who interfere annually with the pay- 
ments at the Upper Sioux Agency, under the pretense of the claim 
they make, before referred to, against the Sissetons, * * *_ 
They number 450 lodges, besides about 200 lodges of what are known 
as tiie Cut Head Yanctonai. and cover a vast extent of country and 
the valley of several large streams." (Ind. Com. Rpt., 1857, p. 52.) 

"^Miile the superintendent uses only the name Yanctonai in this 
report, it is probable, from his description of them and the country 
they occupied, that he referred to all of the bands west of the Sioux 
reserve — Yanctons and Yanctonais alike. 

The following year, in 1858, Agent J. R. Brown, the successor of 
Agent Flandreau, who had been appointed United States district 
judge in the summer of 1857 (Ind. Comr. Rpt., 1857, p. 48). in speak- 
ing of these annual visitors, spoke of them solely as Yanktonais. 
They became so troublesome that Indian Commissioner Mix noticed 
them in his annual report for 1858, and said that the Yanktonais 
had materially interfered with the Sissetons and Wahpetons, and 
w^ere so vengeful and hostile that he had thought it advisable to send 
a special agent, with presents, to investigate and council with that 
band, which was done in the summer of 1858, this special agent, Kent- 
zing Pritchette, the same as was sent out the year before on the Spirit 
Lake affair, being absent on this service from June until October. 
As this has no bearing on the present case, except to show that the 
Yanktons were not the only claimants, it is not necessary to pursue 
it further. 

From the evidence which I have quoted I think it is clear that the 
Yanktons in the beginning, as well as the others, objected to the 



15 

Sisseton and Wahpeton cession, and probabh^ were among the annual 
visitors to the Sisseton payments up to 1857. After that they 
dropped out and were no party to further disturbances. That was 
left to the Yanktonais alone. The reason of this is obvious. In the 
spring of 1858 sixteen representatives of the Yankton band were 
delegated to go on a peaceful mission to Washington, where, on April 
19, 1858, a treaty was made with them (11 Stats. L., 743), by which 
all cause of complaint was removed. 

By this treaty the Yanktons ceded and relinquished, for $1,650,000, 
payable in fifty years, all the lands owned, possessed, or claimed by 
them wherever situated, except 400,000 acres on the Missouri River, 
which was reserved for themselves. The land thus ceded was a large 
tract in the southeast corner of what is now South Dakota, and its 
boundaries are not left to guesswork, but are very clearly defined, 
llie eastern line being from Lake Kampeska " down the Big Sioux 
Eiver to its junction with the Missouri.'' The islands in the Missouri 
from the Medicine Knoll to the Big Sioux were also ceded. 

As going to show the country which the Yanktons and their neigh- 
bors on the east, the Santees, loosel}^ held at different times and had 
some right of occupancy, it is noted that certain allowances which 
were to be furnished under the treaty of July 15, 1830 (7 Stats. L., 
328), for ten years, or during the pleasure of the President, were dis- 
tributed to them until 1850 on the Missouri Eiver, the Yanktons 
receiving theirs at Fort Lookout and the Santees theirs at Fort Ver- 
million.^ (Ind. Comr. Rpt., 1849, p. 134.) 

From this it would appear that the Santees had certain rights 
as far as the Missouri River, while I have been unable to find any- 
thing to show that the Yanktons ever occupied any country east of 
the Big Sioux. " Santee " is but another name for the Medawa- 
kanton, "Wahpekoota, Sisseton, and Wahpeton Bands of Sioux, or 
the Sioux of the Mississippi, and being short and east of pronuncia- 
tion was often used in place of the longer name. It is so used in 
another place in this report (p. 13). 

The Yankton treaty of 1858 is clear and comprehensive and was 
evidently well considered. In article 2 the Indians asserted that all 
lands " embraced in said limits " were their own and they had " full 
and exclusive right to cede and relinquish the same to the United 
States." 

The inference is irresistible that if the Yanktons owned or claimed 
anything outside of " said limits " they would have mentioned it. 
Nothing, however, outside of the described cession was mentioned, 
but in article 8 of the treatj^ the following occurs : 

'' The said Yankton Indians shall be secured in the free and unre- 
stricted use of the red pipestone quarr}^ or so much as they have 
been accustomed to frequent and use for the purpose of procuring 
stone for pipes; and the United States hereby stipulate and agree 
to cause to be surveyed and marked so much thereof as shall be neces- 
sary and proper for that purpose, and retain the same and keep it 
open and free to the Indians to visit and procure stone for pipe so 
long as they desire.'' 

The treaty further provided for the manner of payment, the care 
of the sick, the purchase of stock, the establishment of schools, and 
evidently covers all points raised at the time. 



16 

In presenting the treaty to the department for transmission to 
Congress, Commissioner Mix said : 

" Bv the stipulations of this agreement not only the above-men- 
tioned lands are obtained, but their (the Indians) complamts are 
silenced against the Government for having purchased without^their 
consent in"l857 (1851?) lands of the four bands of Sioux mMmne- 
sota in which they allege they had an interest." (Ind. Office Report, 
Book 10, p. 476.) 

^Yhile the complaint was in general terms that the Government 
had purchased the Sisseton lands without the Yankton's consent, yet 
their real grievance was not so much that they had not been con- 
sulted; but that they were apparently deprived of the ^se ot a 
quarr^ to which for generations they had been accustomed By t^his 
treaty this question was effectually settled, and evidently finally, 
so far as the Yanktons were concerned, by securing to them the right 
of way to get stone from the quarry for their pipes as long as they 
mio-ht desire. It must be assumed that this was a satisfactory 
settlement of the question to the Yanktons, for they accepted it ; and 
having done so, they were estopped from setting up any furthei 

'^ Thai^l^fcrs^'p^^^^^ for the survey of the q^^^ry, was carried 

out would appear from the report of Agent A. H. Redfield to the 
superintendent of the central superintendency in October, 1859, viz. 

"The celebrated red pipestone quarry, a portion of which was re- 
served by the Yanktons in their treaty, has been surveyed and marked 
by Messrs. Hutton and Snow the past summer. (Ind. Com. Kpt., 
1859, p. 128.) 

Things went on in this way some thirteen years, when m 1871 the 
Indian Office permitted a settler to locate on the pipestone land sur- 
veyed and reserved from entry, and issued a patent thexefor m 18j4. 
The case being brought to the Supreme Court the patent was held 

^""FourTeen Vears later, or thirty years after the treaty of 1858, when 
a new genei4tion had arisen, a bill (H. R. 10544 appeared in Con- 
gress, and on August 8, 1888, the House Committee on Indian Af- 
fairs made a repSrt thereon. The bill itself is not before me but 
from the report,Vhich I have seen it appears that the bdl was for 
the disposition of the agricultural ands ^"l^^'^^^^V'''^ t/ .?Jv^ded 
of the Pipestone Indian Reservation in Minnesota It Piovidec 
for the sale of this land and that the act should take effect only 
npon the consent of a majority of the adult lankton bioux. The 
Tndran Office, being called upon for a report, suggested certain 
chaii^es in the verbiage in a letter of July 3, 1888, not referring to 
t e q'uarrv as such, and offered a substitute in accordance with is 
views. The committee adopted the substitute and recommended its 
paslage. (H. R. Report No. 3228, 50th Cong., 1st sess.) Nothing 
further, however, appears to have been done with it 

Six years after this the matter came again to the surface, this 
time^ncidentally. In 1894 the department transmitted to Congress 
aTtter of the Indian Office dated December 9, 1893, accompanied by 
the report of the Yankton Indian Commission, an agreement made 
with those Indians on December 31, 1892, for the sale of their sur^ 



17 

plus land. (Sen. Ex. Doc. No. 27, 53d Cong., 2d sess.) In its report 
to the Indian Office March 31, 1893, the commission said (p. 15) : 

" By the treaty of 1858, the Yankton Indians ceded to the United 
States their claim to all lands excepting- their home reservation of 
400,000 acres and the Red Pipestone quarry." 

As to this I would remark that this statement is inaccurate and 
misleading. Articles 1 and 2 of the treaty of 1858, making the 
cession, make no reference to the quarry at all, either directly or in- 
directly. The " Home Reservation " is excepted, it is true, but not 
the quarry. It is not until article 8 that any mention is made of 
that, and then only to give the Yanktons the right of way or, accord- 
ing to high authority, an easement to get the pipestone. 

The commission further reported (p. 24) that "the Red Pipestone 
quariT was made a sine qua non of the treaty of 1858," and that 
Chief'^Struck by the Ree would not sign " until this was assured him." 
Whatever "this" may mean, I can find nothing in the official rec- 
ords here to show that this incident occurred. The commission evi- 
dently got its impression from speeches made by the Indians at the 
council proceeding, especially that of Henry Selwyn. He is reported 
as saying: 

" I want to speak of the Pipestone Reservation. By the treaty of 
1858 (?) it seems that the present Pipestone Reservation w^as sold 
the Government by the Santees. Before the Santees made the sale 
we owmed the Pipestone quarry, and the Santees virtually stole and 
sold it. Wlien the commission was sent out to negotiate in 1858, 
Struck by the Ree refused to sell the land until the Pipestone quarry 
Avas returned to the Yankton Tribe. When the Government prom- 
ised to give this back to the Yanktons, Struck by the Ree then 
signed the treaty. So the basis on which the treaty of 1858 was 
made was the return of the Pipestone quarry. The United States 
bought back this land and gave it back to the Yanktons." (P. 55.) 

The speaker was a full-blood Indian, or nearly so, a Presbyterian 
clergyman, and to my own personal knowledge a most excellent man ; 
but he was evidently speaking from hearsay, and not from his own 
personal knowledge, as he was not old enough in 1858 to understand 
what was going on, and evidently got things twisted. While, as I 
have said, I can find no record of the Struck by the Ree incident 
here, it is not improbable that something like it might have occurred, 
for it is certain that the quarry matter was discussed and article 8 
of the treaty was the outcome. Whatever the attitude of Struck by 
the Ree might have been in the beginning of the negotiations, he 
must have been satisfied at the end ; he evidently got what he wanted, 
for he signed the treaty. In this connection I deem it proper to say 
that there could hardlj^ have been a misunderstanding as to the mean- 
ing of the treaty with regard to the quarry, as has been intimated, 
as the interpreters, Zephyr Roncontre and Chas. F. Picotte, the lat- 
ter signing as the representative of three of the authorized delega- 
tion, were singularly well qualified for their work and had the entire 
confidence of the Indians. Both Avere granted by the treaty a section 
of land apiece for valuable service and liberality to the Yanktons. 
As Henry Selwyn, in his speech, refers to the Santees, I have ex- 
plained before (p. 9) that they w^ere the Medawakanton, Wahpe- 



18 

koota, Sisseton, and Wahpeton bands of Sioux. In this instance 
Selwyn refers particularly to the two latter. 

The commissioners Avere evidently impresed, but realizing that the 
question of absolute ownership which had arisen was one for the 
courts to decide, allowed Article XVI of the new agreement to be in- 
serted, providing that if the Government questioned the ownersliip 
to this Pipestone Reservation by the Yankton Band it should as 
speedilv as possible refer the matter to the Supreme Court for de- 
cision. "^ If it failed to do so within a year after the ratification of 
the agreement the reservation should be the sole property of the 
Yanktons. The agreement Avas ratified by act of August 15, 1894. 
(28 Stat. L., 314.) 

The case was not submitted to the Supreme Court for the reason, 
as the Department of Justice advised, that it was impracticable to 

do so. . 1 J. 1 

The Indian appropriation act of June 7, 1897, contained the fol- 
lowing clause (30 Stat. L., 87) : 

" The Secretary of the Interior is directed to negotiate, through an 
Indian inspector, Avith the Yankton Tribe of Indians of South 
Dakota, for the purchase of a parcel of land near Pipestone, Minn., 
on Avhich is now located an Indian industrial school." 

The Indian school referred to was established on the reservation 
under section 2 of the act of February 16, 1891 (26 Stat. L., 764). It 
should be remarked that the Yanktons applied for compensation for 
this appropriation of their land but the Assistant Attorney General 
on September 17, 1891, rendered an opinion that the Indians were 
not entitled to such compensation, for the reason that their rights to 
quarry stone were not infringed upon and that they would not suffer 
any damage from the constniction of the school buildings. (Ind. 
Com. Rpt., 1892, p. 60.) 

Under the act of 1897. just refered to, I was directed to negotiate 
Avith the Indians, which I did, and reported fi'om Yankton Agency, 
South Dakota, October 9, 1899, transmitting an agreement and the 
i^roceedings of council. The Indians had extravagant notions and 
first wanted $3,000,000 for the reservation of 648.2 acres, then 
JPI, 000,000, but finally came down to $100,000, at which figure I 
eA^entuallv made the agreement. This agreement was transmitted to 
Congress' by the department March 24, 1900. My report, the agi'ee- 
ment, and council proceedings are given in full in H. R. Doc. No. 
535, 55th Cong., 1st sess. ^ , . 

Three years later, on March 3, 1893, Senator Quarles, from the 
Senate Committee on Indian Affairs, submitted an adverse report on 
the bill to ratify the agreement (S. 1472). The committee quoted 
article 8 of the treaty of April 19, 1858, and said that the only title 
the Yanktons had was in the nature of an easement; and, referring 
to the failure to submit the question of title to the Supreme Court^ 
also said that such a course was a legal and a practical impossibility, 
it having no original jurisdiction. Senator Gamble, for himself and 
two others, submitted a minority report arguing in favor of the 
Yankton's contention and expressing the opinion that the agreement 
should be ratified (Sen. Ept. No. 3316, 57th Cong., 2d sess). No 
action appears to have been taken on the bill. 



19 

After an interval of three years, on April 4. 1906, Senator Gamble, 
from the Senate Committee on Indian Affaii*s, made another report 
on a bill (S. 2993) to ratify the Yankton agreement, this time favor- 
able, reconmiending that it do pass. (Sen. Ept. Xo. 2369, 59th Cong., 
1st sess.) 

One of the reasons offered by the committee in favor of the Yank- 
tons was an extract from a report of Chas. E. Flandreau, agent for 
the Sioux (meaning the Sissetons and Wahpetons) to the Commis- 
sioner of Indian Affairs in 1857, i. e. — 

" The Yanktons claim a right to share in the annuities and every 
l^ayment that has been made has been protested and disturbed by the 
presence of these Indians." 

This is only a partial quotation; the rest of it would qualify the 
meaning materially. I would refer to page 5 of this report for the 
full text, which shows that other Indians were interested as well as 
the Yanktons, and were present at the payments. If. therefore, the 
presence of the Yanktons is any proof of the justice of their claim, 
the presence of the " Cut Heads (Yanktonais) and other Indians 
from the plains " should show that they had an equal title. I would 
note that " protested " in next to the last line of the committee's 
quotation is '' protracted '' in the original. 

Upon a careful review of the case in the light of the foregoing, and 
of my own personal loiowledge, I am fully convinced that the opinion 
I have long entertained is correct, i. e., that the Yanktons have not, 
and never had, the exclusive title to the Pipestone quarry. Governor 
Ramsey's assertion in 1849, which I have quoted on page 4, than 
whom there is no better authority, that the Sissetons claimed its 
custody would be sufficient proof in itself; but the treaty of 1858, 
which gave the Yanktons an easement to get stone for pipes and 
nothing more, taken with the statement of Commissioner Mix, that 
by that treaty complaints of the Indians were silenced, would be con- 
chisive if there were any doubt remaining. 

The Yanktons were not the only Indians, nor the principal ones, 
'^ho objected to the ceding of the Sisseton and Wahpeton lands with- 
out their consent. Certainly they did not do so after the Sisseton 
payment of 1857, for in the spring of 1858 they ceded their own land 
without the consent of the other Sioux bands. The Yanktonais re- 
sented this as vehemently as the}^ did the Sisseton and Wahpeton 
cession, and besought their agent, A. H. Redfield, at Fort Union, in 
September, 1858, to write their Great Father to stop the treaty (Ind. 
Com. Rpt., 1858, p. 85). The Yanktonais were the hardest and most 
persistent of the " kickers," and they continued their opposition as 
late as 1861, or until the terrible affair of Xew Ulm in 1862, which 
changed the whole aspect of affairs with respect to the four bands of 
Santee Sioux ; their treaties were abrogated, their payments were 
stopped, and the Indians themselves were driven fi^om their ancient 
habitations. The Yanktonais were a proud and haughty people and 
rejected all overtures to placate them (Ind. Com'r. Rpt., 1861, p. 
72). The Yanktons, on the other hand, who by reason of their en- 
vironment and necessities had grown to be a peaceable and an 
orderly people, were friendly to the Government and not given to 
obstruction, certainly not after their treaty of 1858. 



20 

As to the price fixed in the agreement I made with theYanktons 
in 1899, I thought it was excessive then and I think so still ; but as it 
was the best terms I could make, and as in my instructions, the de- 
partment spoke of the " Red Pipestone " as famous in song and story, 
and the advisability of preserving it as a national park, or reserva- 
tion, I assumed that thei'e was more than the actual market value to 
be considered, and concluded it best to close the agreement as I did. 

The value j)laced upon the reservation by the Indians is almost 
wholly sentimental and has sprung up of late years. Beyond the 
area of tillable land in the tract there is nothing about it of any par- 
ticular utility in the commercial world. In offering $100 an acre for 
it, as I did at first, I considered that I was going to, if not beyond, 
the just point of liberality. In the earlier days a large number of 
Indians of the Sioux Tribe visited the quarry to get tlie pipestone; 
but in later years conditions have changed; tribes are rapidly disin- 
tegrating; tribal ceremonies are dying out, or becoming civilized, and 
there is no longer the demand for the pipestone there formerly was. 
The Indians no longer need it, and the white man treats it princi- 
pally, if not altogether, as a curio. If it be decided that there is any- 
thing due for the Indian title, and I do not think there is, it should 
not exceed $100 an acre. 

As a difference as to the ownership of the property may be ob- 
served between this report and mine of October 9, 1899, I would 
have it clearly understood that in conducting the negotiations of 
that year I was but the mouthpiece of the department, reflecting 
its views without regard to my own. In my instructions from As- 
sistant Secretary Ryan of May 23, 1898, he quoted the act of Con- 
gress already referred to, gave a history of the case, and directed 
me to convene a council of the Yanktons and procure from thsm, a 
cession of a part, if not the whole, of the Pipestone Reservation; 
while Commissioner Browning, March 6, 1897, had written a letter 
to Hon. R. J. Gamble, then in the House of Representatives, which 
was exhibited to me at the negotiations and very much in evidence; 
in which, after quoting article 8 of the treaty of 1858, he wrote : 

" Whatever rights were secured under this article of the treaty 
were vested in the Yankton Indians, and in the Yanktons alone. 
The recent agreement with the Yankton Indians did not alter the 
status of the Pipestone Reservation in this respect, whatever effect 
it may have had upon the rights of the United States and the Yank- 
ton Indians, and in the opinion of this office no Indians other than 
the Yankton Sioux liaA^e any legitimate claim to such reservation." 

In the light of these documents I negotiated, with some difficulty, 
the agreement referred to, recognizing the Yanktons as the sole 
owners of the Pipestone Reservation. 

It has developed during this investigation that another opinion 
on this subject was expressed by the Indian Office over three years 
before the one just quoted. In submitting the agreement of the 
Yankton Commission to the Secretary of the Interior on Decem- 
ber 9, 1893, the acting commissioner had said : 

" Although the title of these Indians in this reservation has not 
been regarded as fee simple, their rights to control and retain it as 
long as they may desire has been fully recognized." (Ind. O. letter, 
Bk. L, 135 pt. 1, p. 446.) 



21 

But of this letter of December 9, 1893, I was not aware at the 
time of my negotiations with the Yanktons. I do not know that 
it would have made any difference, for department instructions 
were paramount, and under them I was to obtain the cession if I 
could. I quote the letter now to show that there was a diversity 
of opinion in regard to the quarry, even in the Indian Office. 

While I was but carrying out the department ideas, my own per- 
sonal opinion at the time, without having gone very deeply into the 
subject, was contrary to that expressed in the letters just quoted. 
I did not think that the Yanktons alone had rights in this quarry, 
and so I tried to get them to recognize the other Sioux, advising 
them that other bands besides themselves were claimants, notably 
the Yanktonais of Crow Creek Agency, and the Sissetons and Wah- 
petons. 

In this connection I submit that a delegation of four Sissetons and 
Wahpetons of the Devils Lake Agency, Xorth Dakota, recently in 
Washington on business for their reservation, spoke to me about the 
Pipestone quarry. They admitted that this quarry was within their 
cession of 1851 and contended that it was formerly the property of 
the Sisseton and Wahpeton bands, but frequented by all the bands 
of Sioux residing east of the Missouri River; that for a long time 
they had supposed the quarry was reserved to them by the treaty, 
but subsequently learned that the cession embraced the quarry. 

The truth is that aJl of the Sioux bands claimed, and have had 
from time immemorial, an equal right to use this Pipestone quarry. 
I assert this with entire confidence, both from the official record and 
my own personal knowledge derived from forty-nine years acquaint- 
ance with the Sioux, forty of which has been continuous service 
among the Indians, twenty-four of the forty years being spent with 
the Sioux of the plains and those of the Mississippi. All the older 
members of the Sioux tribe will testify to the correctness of this 
view. 

To sum up, my deliberate conclusion is that whatever rights the 
Indians still may have to the Pipestone Reservation belongs to the 
whole Sioux Xation. at least to those who reside or formerly resided 
east of the Missouri River, and not to a single band; and that if 
an3^thing is due to extinguish the Indian title thereto, the Yanktons 
are entitled to their pro rata share and no more. 

In giving the Indian names I have followed, as a rule, the modern 
spelling; and I have attached four sketch maps showing the situation 
with respect to the Pipestone quarry, the location of the different 
Sioux bands, and the cessions of 1851 and 1858. 
Very respectfully, your obedient servant, 

James McLaughlin, 

Impector. 



No. 



MAP SHOWING LOCATION OF SIOUX BANDS 
IN ia-43 AND BErOR.E. 
(COM'r's R.EPOR.T IS4-9. R 77.-86.) 
1857. P. 70. 




I- MEDAWAKANTON 5- TETON 

Z' WAPAKOOT/S 6- YANKTON 

3- WAMPETON 7- TANKTONAI. 
4-- 3ISSETON 

CHIPPEWA e» Sioux boundary 

— S.AC e FOX & SIOUX BOUNDARY 



TREATY I850. 



No 2 

MORSE'S MAP OF MINNESOTA lERRitoRv i8se 

WITH CE€>SlOf*S or l65l AND 1859 SHOWN ON IT 




TREATY 1851 - 
IQ58 * 



SIS)5ET0N &WAHPETON 
YANKTON 



No. 3. 



MAPOF MINNESOTA. 1311 

WHAT WAS THE TERR.ITOR.X U hi T I L I05S. 
SHOWING CE55I0N'6. 




R.EATY OF 1851- SISSETON 6 WAHPETON CESSION. 
• " I85S- YANKTON CESSION, 



N o. ^ 
PLAT OF PIPESTONE QUARRY 
RESERVATION. MINN. 

AFTER SURVEYOR GENERAL, ST. PAUL 1899. 
TAKEKJ FROM H.R. DOC, NO 535, 56 CONG. |SJ. 6eS5. 



Sec. 35 



T I07 N. R.^eW. 
Sec. 56 




T.I06 N.- "R.^eW. 

O 



27 



Court of Claims of the United States, 

No. 31253. 



THE YANKTON SIOUX INDIANS vs. THE UNITED 
STATES. 



EVIDENCE FOR DEFENDANTS. 



INDEX. 

Page. 

Deposition of Eli Abraham 27 

Napoleon Wabashaw 29 

Thomas AVhipple 30 

Thomas K. West 32 

Joseph P. Killers 34 

John Eastman 36 

Thomas A. Robertson 38 

Joseph R. Brown 41 



The deposition of Eli Abraham^ far defendants^ taken at Spring- 
field, S. Dak., on the 13th day of July, A. D. 1915. 

Claimant's counsel. L. B. French ; defendants' counsel, George M. 
Anderson. 

Eli Abraham, having been produced as a witness on behalf of the 
defendants, was by me sworn, before any question was put to him, 
to tell the truth, the whole truth, and nothing but the truth relative 
to the said cause; and thereupon deposed and said, through E. C. 
Cambell, an interpreter duly sworn by me to truly and faithfully 
interpret all questions propounded to said witness and the answers 
given by said witness thereto, that his name is Eli Abraham; that 
his occupation is that of a farmer; that he is 66 years of age; that 
his residence is the Santee Agency, Knox County, Nebr. ; that he has 
no interest, direct or indirect, in the claim which is the subject of in- 
quiry in said cause : that he is not a relative to the claimants. And 
thereupon the said Eli Abraham was examined by the counsel for 
the said defendants, and in answer to interrogations testified as 
follows : 

1. Question. To what tribe and band of Indians do you belong? 

Answer. To the Medewkanton Band of Sioux Indians — tribe. 

40720—16 



28 

2. Question. State if you know what was the Avestern line of the 
four bands of Minnesota Sioux before the treaties of Traverse des 
Sioux and Mendota in 1851, according to the history and traditions 
of the band to Avhich you belong? 

The question is objected to for the reason — First, that it is immate- 
rial and irrelevant; second, that since the above named a treaty or 
treaties has been made between the Yankton Indians and the Gov- 
ernment of the United States, and that so far as the Government is 
concerned and also the Indians they are bound b}^ this treaty, or 
treaties, and they being in writing and signed by the United States, 
as well as the Indians, are a part of the records in files of the Indian 
Office and are the best evidence ; third, this being so. both the Indians 
and the United States are stopped of shoAving any other or different 
boundaries at this late date, and if it is proposed to show anything 
different it will be incompetent evidence. It is agreed by counsel for 
both parties that these objections shall apply, and need not be re- 
peated, to all subsequent questions put to this and other witnesses. 

Answer. We had no surveys or section lines, but used natural 
objects for boundaries, such as streams and rivers. The western 
boundary was the Crooked Kiver, now known as the Sioux River. 

3. Question. From whom did you yourself get this information as 
to the western line of the lands of the Minnesota Sioux ? AMiom did 
3^ou hear talk about it ? What old people, if any ? 

Answer. I ahvays heard the old people talking about it. 

The said witness was then cross-examined by the counsel for 
the claimants and, in answer to interrogatories, testified as follows : 

1. Cross-question. When was it that you heard these old people 
talking about this? 

Answer. Before 1862, when we Avere living in Minnesota. 

2. Cross-question. Near Avhat place did you liA'e in Minnesota at 
the time you heard these people talking about this? 

Answer. At a place called RedAvood. Minn. 

3. Cross-question. Can you give the name or names of any old 
people that you heard talking about this? 

AnsAver. Yes. 

3a. Cross-question. Who Avere they? 

Answer. Some were chiefs and some Avere men of the trilje. 

4. Cross-question. How long did you live at RedAvood after the 
time you heard them talking about this? 

AnsAver. About Aa'c or six years, and then I left there. That Avas 
before 1862. 

5. Cross-question. Where did you go from Redwood? 

AnsAver. DoAvn the IMississippi and up the Missouri to CroAv Creek. 

6. Cross-question. All that you kneAv aboutthisAvas what you heard 
the old men talking? 

AnsAver. Yes; afterwards I read from the histories and treaties, 
and I kncAv it Avas true. 

7. Cross-question. 

Redirect : 
Question. When did you go aAvay from RedAvood. Minn? 
Answer. In 1863. 
Question. V^hy did you leave RedAvood? 



29 

Answer. Our parents got into trouble, and the Government took 
us there ; we did not go of our own free will. 
Eecross b}^ Mr. P'rexch : 

Question. How old were you at that time— I mean at the time you 
were taken away from Sedwood? 

Answer. I was 14 years of age. 

Final question. Do you know any other matter relative to the claim 
in question? 

Answer. That is all I know. 



Deposition of Napoleon Wabashaw, for defendants, taken at Spring- 
field, S. Dak., on the 13th day of July, A. D. 1915. 

Claimant's counsel. L. B. French; defendants' counsel, George M. 
Anderson. 

At the same place and on the same day, in the presence of the 
same counsel of both parties. Xapoi.kox Wabasiiaw, a witness on 
behalf of the defendants, was produced, and, having been by me in 
like manner sworn, deposed and said that his name is Napoleon Waba- 
shaw ; that his occupation is that of a farmer ; that he is 63 years of 
age; that his place of residence is Santee Agency, Nebr.; that he has 
no interest, direct or indirect, in this claim; and that he is not related 
to the claimants. And thereupon the said Napoleon Wabasha w was 
examined by the counsel for the defendants, and, in answer to inter- 
rogatories, testified as follows : 

1. Question. To what band and tribe do you belong? 
Answer. To the Medewakanton Sioux Band of the Sioux Tribe. 

2. Question. State, if you know, what was the v,'estern boundary or 
line of the Minnesota Sioux prior to the treaties of Traverse de Sioux 
and Mendota of 1851. as learned from the history and traditions 
prevailing among the Minnesota Annuity Sioux ? 

Answer. Yes, I Imow from what I have heard. 

3. Question. State then, where it was? 

Answer. From what I have heard it was on this side of the Minne- 
sota line. 

4. Question. Do you mean on the west side ? 
Answer. Yes. 

5. Question. What was the natural boundary, as loiown by the 
Indians of the band to which you belong on the west of your lands, 
if anv? 

Answer. Before it was surveyed the western line was the Crooked 
or Sioux River, the Indian name of which was Tchan-kas-an-duta. 

6. Question. You have stated that you learned of the western 
boundary from hearing it discussed. ' By whom did you hear it 
spoken of? 

x\nswer. This was told to me by my father. Chief AVabashaw, who 
said that they came up hunting as far as the Crooked or Sioux Eiver, 
and that that was the boundary. 

7. Question. How old were you when he first told you about this? 
Answer. I think I was about 10 years of age. 

8. Question. How old were you when you first went to the Crooked 
River? 



30 

Answer. My father went there hunting, and I and my brother went 
with him. I was then about 10 years okl. 

9. Question. How long has your father been dead? 
Answer. He died in April, iSTS. 

10. Question. What other men did you hear discuss this boundary 
line ? 

Answer. Another old man by the name of Iron Elk, who died on 
the Santee Reservation not long ago, always told us that the Crooked 
Eiver was our western boundary, but that when the line was sur- 
veyed it was crowded east. 

11. Question. Was or was not this subject frequently discussed 
among the Indians of your band ? 

AnsAver. These things are not generally discussed among the mem- 
bers of the tribe, but the old people when they were getting old and 
weak AYould tell us to remember these things. 

12. Question. AMien, if at all. did you leave Eedwood, Minn.? 
Answer. In 1863. 

13. Question. Where did you go from Rechvood ? 
Answer. I went to Crow Creek. 

14. Question. Were you taken there by the Government or did you 
go of your own accord. 

Answer. I was taken by the Government in a steamboat. 

Cross-examination by Mr. French : 

1. Question. When you went to the Crooked River with j'our 
father Avhere did you live ? 

Answer. We lived in tepees. 

2. Question. At what place was the tribe located at the time you 
went to the Crooked River with your father. 

Answer. At Redwood, Minn. 

3. Question. Was that before or after the time that the Government 
took you away from Redwood? 

Answer. At the time I and my father Avent to the Crooked River 
was about 1860. 

Final Question. Do you know any other matter relative to the claim 
in question ? If so state it. 

Answer. That is about all I know. 



Deposition of Thomas Whipple, for defendants, taken at Springfield, 
S. Dak., on the 13th day of July, A. D. 1915. 

Claimant's counsel, L. B. French: defendants' counsel, George M. 
Anderson. 

At the same place on the same day, in the presence of the same 
counsel for both parties, Tiio:srAs Whipple, a witness on behalf of 
the defendants, was produced, and, having been by me in like manner 
sworn, deposed and said that his name is Thomas Whipple ; that his 
occupation is that of a farmer; that he is 69 years of age: that his 
place of residence is Eggleston, Minn. : that he has no interest direct 
or indirect in the claim which is subject of inquiry in said cause; 
and that he is not related to the claimants. And thereupon the said 
Thomas Whipple was examined by the counsel for the defendants, 
and, in answer to interrogatories, testified as follows: 



I. Question. Do you know from the tradition and history prevail- 
ing in the tribe and band of which you are a member what the western 
boundaries of the Minnesota Sioux were before the treaties of Tre- 
verse de Sioux and ]\Iendota of 1851? 

Answer. Before the treaty of Mendota. I was quite a large boy and 
remembered quite a good deal, that the Medewakanton and Wape 
kuta Bands lived in Minnesota, and when we wanted any provisions 
we went as far as the Crooked RiAer or the Sioux River for game, 
and we carried the furs back to " Long Trader.*' meaning Gen. H. H. 
Sibley. 

•2. Question. To what band and tribe do you belong? 

Atiswct. Wahpakuta Band of Sioux. 

3. Question. What did you learn from the talk of the old men, if 
anything, as to what was the Avestern line or boundary of the land of 
the Minnesota Sioux before the treaty of Mendota? 

Answer. The Indians always claimed as far as the Crooked or 
Sioux River. 

4. Question. Do you mean the bands to which you belong claimed 
to the Crooked River? 

Answer. Yes. 

5. Question. Whom did you hear — what Indians did you hear say 
the Crooked River was the western boundary of the Minnesota 
Sioux ? 

Answer. My grandfathers and my own parents. 

6. Question. Where were you living when they told you that ? 
Answer. At Faribault. Minn. 

7. Question. When was that — I mean when was it that your grand- 
parents and your parents told you that the Crooked River was the 
western line or boundary of the Minnesota Sioux ? 

Answer. When I was old enough to remember my grandparents 
and parents told me that the Crooked River was the western boun- 
dary. After the line was surveyed we were brought east of the 
Minnesota line. 

8. Question. How long was it that they told you this before the 
great trouble in 1862? 

Answer. This was told to me before the massacre of 1862. 

9. Question. Where were vou living at the time of the massacre 
of 1862? 

Answer. I was in Redwood, Minn. 

10. Question. 'NMio was the chief of the band to which you 
belonged ? 

Answer. Husasa. meaning Redlegs. 

II. Question. Were you any relation of Redlegs? 
Answer. Redlegs and my father were brothers. 

12. Question. When did you leave Redwood? 

Answer. I was about 17 years of age when the massacre started 
in 1862. and Gen. Sibley took us as ])risoners across the river. 

13. Question. You mean Gen. Sibley and his troops, don't you? 
Answer. There were no soldiers : the officers took me. 

14. Question. Did you ever hunt, yourself, as far as the Crooked 
River? 

Answer. Yes. 

15. Question. What towns are on the Crooked River now that you 
know ? 



32 

Answer. Flandreaii and Pipestone. 

16. Question. On what riA^er, if you know, is Sioux Falls? 

Answer. On the west bank of the Crooked River. 

Cross-examination waived. 

Final question. Do you know am^ other matter relative to the 
claim in question? If so, state it. 

Answer. As far as I know my father, Tasadia, meaning ''Walking 
Cane," was buried at the Indian Presbyterian Church at Flandreau, 
and they said t]iat was on the boundary. 



Deposition of Thomas K. West, for defendants, taken at Flandreau^ 
S. Dak., on the 16th day of July, A. D. 1915. 

Claimants' counsel, L. B. French ; defendants' counsel. George M. 
Anderson. 

Thomas K. West, having been produced as a witness on behalf of 
the defendants, was by me sworn, before any question was put to him, 
to tell the truth, the whole truth, and nothing but the truth relative 
to the said cause; and thereupon deposed and said, through James 
A. Robb, an interpreter duly sworn by me to truly and faithfully 
interpret all questions propounded to said witness and the answers 
given by said witness thereto, that his name is Thomas K. West; 
that his occupation is that of a farmer; that he is 76 years of age; 
that his residence is near Flandreau, Moody County, S. Dak.; that 
he has no interest, direct or indirect, in the claim which is the sub- 
ject of inquiry in said cause ; that he is not related to the claimants. 
And thereupon the said Thomas K. West Avas examined by the 
counsel for the said defendants, and in ansAver to interrogations testi- 
fied as follows: 

1. Question. To Avhat tribe and band of Indians do you belong? 
Answer. To the Wahpeton Band of Sioux Indians. 

2. Question. State, if j^ou know. Avhat Avas the Avestern line of the 
four bands of Minnesota Sioux before the treaties of TraA^erse des 
Sioux and Mendota in 1851, according to the history and traditions 
of the band to which you belong. 

(The question is objected to for the folloAving reasons: First, that 
it is immaterial and irrelevant and calls for hearsay testimony; 
second, that since the above-named treaty or treaties Avas made, other 
treaties haA-e been made betAveen the Yankton Sioux Indians and 
the Government of the United States; that by reason of such treaties 
the Government is estopped frcan claiming anything other or differ- 
ent from the matters stated in said treaty, as are also the Indians, and 
both parties are bound by these treaties, and they being in Avriting 
and signed by the United States, as Avell as the Indians, are part of 
the records on file in the Indian Office at Washington, and are the 
best evidence; this being so, both the Indians and the United States 
are estopped to shoAv any other or different boundaries at this late 
date, and if it is proposed to show anything different, it Avill be in- 
competent to shoAv this by parol evidence. It is agreed by counsel 
for both parties that these objections shall apply to all evidence on 
the question of boundary lines, and need not be repeated,, to subse- 
quent questions of the same character put to this and other Avitnesses.) 



Answer. I have heard the old men talking about the land belong- 
ing to the Minnesota Sioux extended to the Sioux Eiver. 

2a. Question. What was the Sioux name for the Sioux Eiver? 
Answer. Tchan-kas-an-data. 

3. Question. When did you hear the old men of the tribe speak 
of the Sioux River as the western boundary of their huids? Was it 
before the treaties, after then, or about that time ? 

Answer. At the time the treaty was signed. 

4. Qu.estion. Did anyone ever tell you vihat the western boundary 
was? If so. who was it? 

Answer. My father. 

5. Question. What did he say to you when he told you ? 
Ansvv'er. He came home from the meeting with the commissioners 

and was talking about it at home. 

6. Question. About how old were you at that time? 
Answer. I was about 14 years old. 

7. Question. Where were you born? 
Answer. Where the city of faribault is now, 

8. Question. Where were you living v/hen the trorible of 18G2 
started? 

Answer. Redwood Falls, Minn. 

9. Question. When did you move away from Redwood Falls? 
Answer. I went away from there as a prisoner. 

10. Question. What Indians roamed about the country where Pipe- 
stone, Minn., is, and around here, if you know — about the time or 
before the ti-eaties of 1851 ? 

(Objected to by Mr. Fi-ench on the part of the claimants and 
plaintiffs for the reason that no proper foundation has been laid, and 
it is incompetent, immaterial, and irrelevant to any issue in this case; 
and for the further reason that this action is based upon certain 
treaties made and entered into by and between the Yankton Sioux 
Indians and the Government of the United States, which treaties 
have been confirmed by acts of Congress and can not now be inquired 
into in this proceeding by parol. This objection applies to all e^/i- 
dence of the same or similar character of this witness, or any other 
that may be called, without repeating the same.) 

Answer. The Sissetons and Wahpetons of White Lodge's Band. 

11. Question. Was there any lands or patches cultivated, if you 
know, along the east side of the Sioux River bv Indians at the time 
of the treaties of 1851 ? 

Answer. I have heard that there were fields planted at Egan and 
along here by the Sissetons — fields of corn. 

12. Question. Who told you about those fi.elds having been planted 
along the river? 

Answer. Marpiyahdinape, meaning "Appearing Cloud," told me. 

13. Question. Who was this man. Appearing Cloud, who told j'ou 
this? Was he a chief or simply a member of the tribe? 

Answer. He was a medicine man. 

14. Question. Hoav old was he when he told you that? 
AnsAver. He was an old man ; dead now. 

15. Question. Hoav long ago did he tell you that? 
Answer. Six years ago, probably. 

16. Question. Did you yourself ever hunt to the Sioux River? If 
so, how long ago? 



^4: 

Answer. I came to the creek the other side of Pipestone and did 
not come to the Sioux Kiver. 

17. Question. What creek was that? 
Answer. Split Eock Creek. 

18. Question. How old were you then? Where were you living? 
Answer. About 21 years old and living at Red Wing, Minn. 

By Mr. French : 

1. Cross-question. When did you leave Red Wing? 
Answer. At the time of the Minnesota outbreak. 

2. Cross-question. AMiere did you go? 

Answer. We were held as prisoners by the white people. 

3. Cross-question. How long? 
Answer. Four years. 

4. Cross-question. You mean that you were held four years at 
Redwing? 

Answer. I was arrested at Redwood Falls and taken to Davenport. 

5. Cress-question. Did you ever see any of the Yankton Sioux In- 
dians in this vicinity? 

Answer. Yes. 

6. Cross-question. How long ago? 

Answer. Two years ago I was digging pipestone with them at 
Pipestone quarries. 

7. Cross-question. How many were there ? 
Answer. Three. 

8. Cross-question. Did you ever see any Yankton Sioux Indians 
there before that ? 

Answer. I saw them there off and on since I moved up here. 

9. Cross-question. When did j^ou move up here? 
Answer. Over 40 years ago. 

10. Cross-question. Did you ever see any Yankton Sioux Indians 
here before the treaty of 1851, called the Mendota treaty? 

Answer. Xo. 

Redirect by Mr. Axdersox : 

1. Redirect question. Is it not a fact that all of the Indians speak- 
ing the Sioux language have always had the privilege of taking pipe- 
stone from the Pipestone quarry for the purpose of making pipes 
and ornaments? 

Question objected to as calling for conclusion of the witness and 
is immaterial and irrelevant. 

Answer. It is my understanding that all the Indians who spoke 
the Sioux language to come there and get stone for pipes. 

Final question. Do you know an}^ other matter relative to the 
claim in question? 

Answer. That is all I know. 



DepositiGn of Joseph P. HlUers, for de fen/] ants, tahen at Flandreau, 
S\ Dak., on the 16th day of July, A. D. 1915. 

Claimant's counsel, L. B. French : defendants' counsel, George M. 
Anderson. 

At the same place on the same day, in the presence of the same 
counsel for both parties. Joseph P. Hillers, a witness on behalf of 
the defendants, was produced, and, having been by me in like man- 



ner sworn, deposed and said that his name is Joseph P. Hillers ; that 
his occupation is that of a farmer; that he is 74 years of age : that his 
place of residence is near FLandreaii. S. Dak. : that he has no interest, 
direct or indirect, in the cLaim which is subject of inquiry in said 
cause: and that he is not related to the claimants. And thereupon 
the said Joseph P. Hillers was examined by the counsel for the de- 
fendants, and, in answer to interrogatories, testified as follows : 

1. Question. To what tribe and band of Indians do you belong? 
Answer. Sioux Tribe, Medawakanton Band. 

2. Question. Where were you born? 
Answer. Where Minneapolis now stands. 

3. Question. How old were you when the treaties of Traverse des 
Sioux and Mendota were made in 1851? 

Answer. Twelve years of age. 

4. Question. State, if you know, of what according to the history 
and tradition of your tribe was the western boundary of the lands 
of the Minnesota Sioux at the time of the treat}' of Mendota ? 

Answer. Along the Bix Sioux River. 

5. Question. How did you know this? 

Answer. I heard my father talking about this to some man of the 
tribe. 

0. Question. When did you first hear of this ? 

Answer. It was after the signing of the treaty of Mendota. 

7. Question. How long after the signing of the treaty of Mendota ? 
Answer. About eight years. 

8. Question. How old was your father at that time? Was he an 
old man? 

Answer. jMv father was about 60 years old. 

9. Question. Did you hear any of the old men of the tribe talking 
about this boundary line besides your father? 

Answer. I heard them say the land along the Big Sioux River was 
the boundary and heard others say the land west of the Pipestone 
quarry belonged to them. 

10. Question. Do you know what band of Indians, if any, roamed 
over the land west of the Pipestone and east of the Sioux River? 

Answer. The Wahpetons and Sissetons — a small band of the Sisse- 
tons called " The People Who Lived on the Hill." 

By Mr. French : 

1. Cross-question. Did you ever see any of the Yankton Sioux In- 
dians in this vicinity or near the Pipestone quarry? 

Answer. I have seen them over to Pipestone digging for pipestone. 

•2. Cross-question. Who was the Indian agent in charge of your 
band of Indians at and before the Mendota treaty of 1851 ? 

Answer. He was a white man, but I do not know his name. 

3. Cross-question. Do you know Avhere your father got annuities 
in 1851 and before that? 

Answer. I do not know of them getting anything before 1851. 

-1. Cross-question. When did you see the Yanktons gathering pipe- 
stone at the quarries, as near as you can tell? 

Answer. I saw them every time they came up there. 

5. Cross-question. How many years? 

Answer. Two or three or four years ago. This is the first summer 
that I have not seen them. 



3(5 

6. Cross-question. Do you know of the Yankton Sioux Indians 
making trouble witli the* Sissetons and the Wahpetons at the time 
of the drawing of annuities or rations before the treaty of 1851 or 
since then ? 

Answer. I have never heard of the Yanktons being up there at the 
time or making trouble. 

By Mr. Anderson : 

1. Kedirect question. Is it not a fact that all Indians speaking the 
Sioux language have alwaj^s had the privilege of taking all of the 
stone they wanted out of the Pipestone quarry for making pipes and 
ornaments ? 

(The same objection is made to this as was made to the same ques- 
tion asked of the preceding witness.) 

Answer. That was my understanding that all people speaking the 
Sioux language had the right to go there and take out the stone they 
wanted and use as they saw fit. 

2. Redirect question. Did you mean to use it for pipestones or 
building houses or which ? 

Answer. It is hard to dig out. We could not build houses with it. 
Final question. Is that all you know about it ? 
Answer. Yes. 



Deposition of John Eastman, for defetulanU, taken at Sisseton 
Agency, S. Dak., on the 19th day of July. A. D. 1915. 

Claimant's counsel, L. B. French ; defendants' counsel, Geeorge M. 
Anderson. 

John Eastman, having been produced as a witness on behalf of 
the defendants, was by me sworn, before any question vras put to 
him, to tell the truth, the whole truth, and nothing but the truth 
relatiA'e to the said cause; and thereupon deposed and said that his 
name is John Eastman ; that his occupation is that of minister ; that 
he is 66 years of age; that his residence is the Sisseton Agency, 
S. Dak.; that he has no interest, direct or indirect, in the claim which 
is the subject of inquiry in said cause; that he is not related to the 
claimants. And thereupon the said John Eastman was examined 
by the counsel for the said defendants, and in answer to interroga- 
tions testified as follows: 

1. Question. To what tribe and band do you belong? 

Answer. Sioux Tribe, Medawakanton Band. 

'2. Question. How old were you when the treaties of Traverse des 
Sioux and Mendota were made in 1851 ? 

Answer. — 1 or 2 years old. • 

3. Question. Do you know from the history and traditions pre^ail- 
ing among the Minnesota Sioux what the western boundary of 
lands was in the year 1851 and prior to the treaties of that date? 

(The question is objected to for the following reasons: First, 
that is immaterial, irrelevant, and calls for hearsay testimony; 
second, that since the date of the above-named treaty or treaties 
have been made between the Yankton Indians and the Govern- 
ment of the United States, as well as between the ^ledaAvakan- 
tons, and that so far as the Government is concerned and the 
Indians Avho are parties to the said treaties they are bound by these 



€i7 

treaties, which form a part of the files and records in the Office of 
Indian Ailairs, and are the best evidence of wliat these boundary 
lines were; third, this being so, both the Indians and the United 
States are stopped from in any manner questioning the validity of 
these treaties especially by parol evidence; therefore they can not 
be questioned in this way. It is agreed by and between the counsel 
on both sides of this action that this objection shall apply to all 
questions and ansv>'ers relating to the question of boundaries and 
that this objection may not be repeated.) 
Answer. I heard. 

4. Question. What was the western line, as you heard it? 
Answer. I heard that it was from Lake Kampeska, down on the 

Sioux River, to Flandreau and follow the river south. 

5. Question. Whom did you hear talking about this land? 
Answer. I heard different men — Big Eagle, Two Stars, and some 

other old men. 

6. Question. Big Eagle was a chief, wasn't he ? 
Answer. Yes, sir. 

7. Question. Was Two Stars a chief? 
Answer. He was chief since 1867. 

8. Question. State, if you know, whether it was a tradition and the 
understanding of the tribe that the Sioux River was the western 
boundary of the lands ( 

(Objected to as calling for a conclusion of witness.) 
Answer. Yes, it was considered so. 

9. Question. What band or bands live near and roamed over the 
land on which the Pipestone quarry is located. 

Answer. Lean Bear's Band of Sisseton and Wahpeton. 

10. Question. How did you know that Lean Bear's Band lived 
near there and roamed over those lands? 

Answer. I have been there to the village. 

11. Question. How did vou know that thev lived there before 
1851 ? 

Answer. Yes; ni}' uncle married in that band and he told me 
about it. 

12. Question. Were all Indians speaking the Sioux language privi- 
leged to come to the quarry and take all the stones that they needed 
for pipes and ornaments? 

(Question is objected to — first, that it calls for the conclusion of the 
witness: second, for the reason that by the treaty of 1858 and 1859, 
free and unrestricted use of these pipestone quarries was granted 
to the Yankton Sioux Indians and guaranteed by the Government 
of the United States, and that if other Indians went there for the 
purpose of quarry stone for pipe and ornaments they would be tres- 
passers on these lands. It is agreed by counsel for both parties that 
this objection shall apply to all succeeding questions asked of this 
and other witnesses.) 

Answer. Yes, sir. 

13. Question. How do you know this? 

Answer. Because all Indians go there digging — that is. all speak- 
ing Sioux language. 

14. Question. How did you know about their going there taking 
stone before you were old enough to know anything about it ? Who 
told vou? 



38 

Answer. I heard it from the old people. 

15. Question. State whether or not it was a tradition of the tribe? 
Answer. Yes, it was. 

16. Question. How far back did this tradition go? 

(That question is objected to for the reason that it goes beyond the 
memory of this witness. It could be only hearsay.) 

Answer. It must have been over 200 years. It was over 200 years 
since the Assinniboins left and the Sioux have owned the Pipe- 
stone quarry ever since. 

17. Question. Were there any other bands of the Minnesota Sioux 
living near Pipestone besides Lean Bear's Band? 

Answer. I do not know any other. 

18. Question. Was Lean Bear's Band a subband of White Lodse's 
Band? 

Answer. Yes. 

19. Question. Where did White Lodge's Band live? 

AnsAver. He lived somewhere near there, but I can not say exactly 
where. 

Cross-examination by Mr. French : 

1. Question. When was it that you saw the Sioux Indians other 
than the Yankton Sioux getting pipestone from these quarries — be- 
fore or after the treaty of 1859 with the Yankton Sioux? 

Answer. It was 1861 the first time I saw them. 

2. Question. Were those Indians that you saw at that time Yank- 
ton Sioux? 

Answer. I saw Medawakanton and some of Lean Bear's Band of 
Sisseton and Wahpetons. 

3. Question. Did you ever see any of the Yanktons there getting 
pipestone ? 

Answer. Yes. sir. 

4. Question. Was that before or after the treaty of 1859? 
Answer. First time I saw them digging there was in 1883 or 1884. 

5. Question. Do you know whether or not the Yankton Sioux In- 
dians also roamed over these lands where the pipestone quarries are? 

Answer. I do not know. 

6. Question. HaA-e you seen the Yankton Sioux Indians at the 
Pipestone quarr^^ more than once? 

Answer. Yes: many times after 1883 and 1884. 

7. Question. Do you know what Indians occupied the lands west 
of the Sioux River before the treaty of 1851, called here the Mendota 
treaty or Traverse des Sioux? Or did you hear of it? 

Answer. I heard the Yankton Indians lived there west of the Sioux 
River. 

Final question. Do you know any other matter relative to the claim 
in question? 

Answer. No. 



Deposition of Thomas A. Rohertson, for defendants, taken at 
Sisseton Agency., S. Dak., on the 19th day of July, A. D. 1915. 

Claimant's counsel. L. B. French : defendants' counsel, George M. 
Anderson. 

At the same place, on the same day, in the presence of the same 
counsel for both parties, Thomas A. Robertson, a witness on behalf 



39 

of the defendants, was produced, and, having been by me in like 
manner sworn, deposed and said that his name is Thomas A. Rob- 
ertson : that his occupation is that of a farmer ; that he is 75 j'-ears of 
age: that his place of residence is Veblen, S. Dak.; that he has no 
interest, direct or indirect, in the claim which is subject of inquiry in 
said cause ; and that he is not related to the claimants. And there- 
upon the said Thomas A. Robertson Avas examined by the counsel for 
the defendants, and, in answer to interrogatories, testified as follows : 

1. Question. To what band and tribe do you belong? 
Answer. To the Sisseton and Wahpeton. 

2. Question. How much Indian blood have you? 
Answer. One-eighth. 

3. Question. Your father was a Scotchman, was he ? 
Answer. Yes. 

4. Question. How much Indian blood did your mother have? 
Answer. She was one-fourth Indian and the balance Scotch. 

5. Question. Where were you living at the time of the treaties of 
Traverse de Sioux and Mendota in 1851 ? 

Answer. I was living at Little Crow's village, about 2 miles down 
the river, where St. Paul now stands. 

6. Question, Where were you living when the Sioux outbreak 
occurred in 1862? 

Answer. I was living about 5 miles north of Redwood. 

7. Question. Was it on the Minnesota River? 
Answer. On the north side of the Minnesota River. 

8. Question. What Indians, if you know, were living near the 
Pipestone quarry prior to and after the treaties of 1851? 

Answer. Limping Devil's Band, part of which were Lean Bear's 
Band and White Lodge's Band. 

9. Question. Do you mean that the main band was under Limping 
Devil, and White Lodge and Lean Bear had subbands ? 

Answer. Yes. 

10. Question. Of what were those bands composed ? 
Answer. Sisseton and Wahpetons. 

11. Question. How far, if you know, did the land of the Minne- 
sota Sioux run west? 

The same objection is made to this question as was made to the 
same question asked the preceding witness. 

Answer. From what I have heard, they run from Lake Kampeska 
down the Sioux River to Flandreau; then I do not know where the 
land went from there. 

12. Question. State, if you know from tradition or otherwise, 
what Indians lived between the Sioux River and the James? 

Answer. I forget the chief's name, but the Yanktonais. I remem- 
ber the chief's name now ; it was Drifting Goose. 

13. Question. Where, if you know from tradition or otherwise, 
was the home of the Yankton Indians ? 

Answer. On the Missouri River. 

14. Question. What part of the Missouri River? 
Answer. Down where Yankton is now and Fort Randall. 

15. Question. Did you ever hear or know of any Indians having 
fields of corn in the neighborhood of Flandreau along the Sioux 
River; if so. who were they? 



40 

Answer. Not along the Sioux River, but about 25 or 30 miles 
northeast of the Sioux River. 

16. Question. What Indians were they? 
Answer. Sisseton and Wahpetons. 

17. Question. What Indians roamed and hunted over the lands 
where Pipestone, Minn., is now situated? 

Answer. Sisseton and Wahpetons. 

18. Question. Both before and after the treaty of 1851 ? 
Answer. Yes, sir. 

19. Question. Do you know what the custom w^as among the Sioux 
or Dakota Indians as to getting stone for pipes and ornaments from 
the Pipestone quarry? 

Answer. Yes. 

20. Question. What was that custom? 

(Objected to as immaterial and irrelevant, and for the further 
reason that it does not appear from the question whether it relates 
to the time before the treaty of 1859 or after: and that if it was since 
1859. the Government, by the treaty of that date, guaranteed that 
the Yankton Sioux Indians the free and unrestricted use of the Pipe- 
stone reservation for the purpose of quarrying pipestone. and any 
bands roaming over that reservation or quarrying stone there would 
be trespassers.) 

Answer. All the tribes speaking the Sioux and the Dakota lan- 
guage had the privilege of going there and getting all the stone they 
needed for pipes and ornaments. 

21. Question. How long has this custom, if you know, dated back 
from tradition? 

Answer. As far back as I can remember, and I think for 100 and 
perhaps 200 years. 

22. Question. Was this a general tradition among the tribes? 
Objected as calling for a conclusion of the witness. 
Answer. Yes, sir. 

23. Question. Did the Sioux from across the Missouri River also 
come there — known as Teton? 

Answer. Yes. 

24. Question. Do all of the Sioux still visit the Pipestone quarry 
to get stone for pipes and ornaments ? 

The question is objected to for the reason no proper foundation is 
laid for the question and it calls for a conclusion of the witness. 
Answer. Yes, sir. 

25. Question. How do you know that they do that yet ? 
Answer. I have seen the different bands start out and come back 

loaded with stone. 

26. Question. You have been an interpreter for a long time, have 
you not? 

Answer. Yes, sir. 

27. Question. You were the official interpreter in case of Sisseton 
and Wahpeton Bands against the United States, were j^ou not? 

Answer. Yes, sir. 

28. Question. Did you translate the Episcopal prayer book in the 
Sioux language? 

Answer. Yes, sir. 

29. Question. You also translated part of the Bible in the Sioux 
language ? 



41 

Answer. Only as much of the Bible as contained in the Episcopal 
prayer book. 

30. Question. Were you acquainted ^Yith Bishop Whipple? 
Answer. Yes. sir. 

31. Question. What was 3'our relation to him? 

Answer. I did this translating in the bishop's office at Faribault, 
Minn. 

32. Question. Are you familiar with the history and traditions of 
the Sioux or Dakota Xation? 

Answer. Yes, sir. 

Cross-examination by Mr. French: 

1. Question. Where do you live now ? 
Answer. I live in Marshall County. S. Dak. 

2. Question. How long have you lived there? 
Answer. About 40 years. 

3. Question. A'^liere were you living in 1862 ? 

Answer. I was living at Beaver Falls, Minn., about 5 miles from 
Redwood Agency. 

4. Question. How far was your residence then from Pipestone — 
I mean the quarry? 

Answer. About 75 miles. 

5. Question. In what year did you move to Marshall County? 
Ansv.er. I came to Browns Valley in 1867 and lived there in 1871, 

and moved on to the place where I am now in 1871. 

Final question by Notary. Do you know of any other matter rela- 
tive to the claim in question? 

Answer. Only that I was out as far as the James Eiver with the 
commissioner from Washington in 1858, who wanted to treat with 
Drifting Goose Band of Yanktonai. and I knew that they lived there. 
Also in 1858 and 1859 I was out as far as Flandreau, where Limping 
Devil and the dilferent bands of Sisseton and Wahpetons were living 
and had their fields. 



Deposition of Joseph R. Brown^ far defendants^ taken at Sisseton 
Agency, S. Dak., on the 19th day of July., A. D. 1915. 

Claimant's counsel, L. B. French; defendants' counsel, George M. 
Anderson. 

At the same place on the same day, in the presence of the same 
counsel for both parties, Joseph R. Brown, a witness on behalf of 
the defendants, was produced, and having been by me in like manner 
sworn, deposed and said that his name is Joseph R. Brown; that 
his occupation is that of an interpreter; that he is 60 years of age; 
that his place of residence is Sisseton, S. Dak. ; that he has no interest, 
direct or indirect, in the claim which is subject of inquiry in said 
cause ; and that he is not related to the claimants ; and thereupon the 
said Joseph R. Brown was examined by the counsel for the defend- 
ants and in answer to interrogatories testified as follows : 

1. Question. Mr. Brown, what band of Sioux do yo\x belong? 
Answer. Sisseton and Wahpeton. 

2, Question. What relation was Gen. Joseph R. Brown to you? 
Answer. He v\'as ni}^ father. 



42 

3. Question. Do you know from the history and traditions among 
your tribe what Avas the western boundary of the Minnesota Sioux? 

The same objection is made to this question as made to the first wit- 
ness called. 

AnsAver. Yes. 

-i. Question. What was the western boundary of the four bands of 
Minnesota Sioux as you learned it from the old man of the tribe? 

Same objection. 

Answer. To the Sioux Eiver. 

5. Question. Can you remember any of the old men who told you 
that the Sioux River was the western boundary of the lands of the 
Minnesota Sioux? 

Answer. I can remember two or three. 

6. Question. What were their names ? 
Objected to as calling for hearsay testimony. 

Answer. Gabriel Renville: he was chief of Sisseton and Wahpeton 
Indians: Two Stars, and Akipa, my grandfather. 

7. Question. All three you have mentioned were chiefs of Sisseton 
and WahjDetons, were they not? 

Answer. Yes. 

8. Question. Was that the same Gabriel Renville who was in com- 
mand of the Renville Scouts during the Sioux outbreak? 

Answer. Yes. 

9. Question. When did they tell you about this ? 
Answer. At different times since I lived here among them, 

10. Question. How long have you lived among the Indians ? 
Answer. I came here when the Indians came here in 1865. 

11. Question. Your father was agent of the four bands at Yellow 
Medicine, was he not ? 

Answer. Yes. sir. 

12. Question. You are familiar with the current history and con- 
dition of the four bands of Minnesota Sioux, are you not ? 

Answer. Yes. sir. 

13. Question. Do you knoAv, from hearing the old men talk about 
it, what Indians lived and roamed around the place where Pipestone 
now is? 

Answer. It was the old home of the Wahpetons. 

Cross-examination by Mr. French : 

1. Question. Up to w^hat time did the- Wahpetons live in the 
vicinity of the Pipestone Reservation? 

Answer. They lived about there until they were brought to their 
reservation at Yellow Medicine. 

2. Question. Can you tell what year that was? 

Answer. The agency w^as established in 1851, but the Indians were 
not moved there until 1856. 

3. Question. Do you know anything about the Indians getting 
pipestone from the reservation? 

Answer. I do not know anything about it, only what thej^ said. 
Final question by Notary. Do you know of any other matter rela- 
tive to the claim in question? 

Answer. No: I have stated about all I know about it. 



WASHINGTON : GOVERNMENT PRINTING OFFICE : 



Court of Claims of the United States, 

No. 31253. 



YANKTON SIOUX INDIANS v. THE UNITED STATES. 



INDEX. 



EVIDENCE FOR CLAIMANTS. 

Page, 

Deposition of Eed Horse ^ Z? 

Matthew Leeds y 6 

Sunrise ^ ^ 

Moses Standing Bull y 7 

Iron Bull J"^/ 

L. B. French, 

Attorney for Claimants. 



Deposition of Red Horse for claimants, taken at Wagner, S. D., on 
the 13th day of July, A. D. 1916. 

Claimants' counsel, L. B. French; defendants' counsel, Chas. H. 
Bradley. 

Red Horse, having been produced as a witness on the part of the 
plaintiffs, deposed and said, through Guy Williamson, an interpreter 
also duly sworn by me to truly and faithfully interpret all questions 
propounded to said witness, and the answers given by said witness 
thereto, as follows : That his name is Red Horse, that his occupation 
is that of farmer that he is seventy-eight years of age, and is a member 
of the tribe of the Yankton Sioux Indians, and is interested as a 
member of said tribe in the result of this investigation. And there- 
upon the said Red Horse was examined by the counsel for the claimant 
and, in answer to interrogatories, testifies as follows : 

1. Question. What is your name? 
Answer. Red Horse. 

2. Question. Where do you live ? 
Answer. Three miles east of Greenwood. 



M 



3. Question. Are you a member of the Yankton Tribe of Indians? 
Answer. Yes. 

4. Question. Were you at the Pipestone Reservation before the 
time that your tribe made a treaty with the Government ? 

Answer. Yes. 

5. Question. Who were you there with? 

Answer. The tribe was on a hunt east of the Pipestone Quarry 
and they all went there. 

6. Question. Were you at a council of the Yankton Indians before 
the treaty of 1859 in regard to this Pipestone Reservation? 

Answer. I was not there. I was not at any such meeting. 

7. Question. I call your attention to a time when the Yankton 
Indians met up here at Fort Randall and sent some Indians, among 
others Strike-the-Ree, to Washington to make treaty in regard to the 
lands, and ask you if you were present ? 

Answer. Yes. 

8. Question. Did you hear Strike-the-Ree make any speech there 
at that time? 

Answer. Yes. 

9. Question. What did he say? 

(Counsel for defendant objects to the question on the ground that 
it calls for hearsay testimony from the witness.) 

Answer. He said "my Children, I intended to go on a hunt at 
this time but the Great Father invites me to go to Washington, and 
I will go". 

10. Question. Did he say anything else, and particularly did he say 
anything in regard to the Pipestone Reservation? 

(The defendant objects to this question on the ground that it is 
leading, and also on the further ground that it calls for hearsay 
testimony.) 

(It is stipulated and understood between counsel that this objection 
shall apply to all similar questions.) 

Answer. He put his finger on his breast and said "the Pipestone 
Quarry belongs to me". He said "the Santees sold the Pipestone 
Quarry to me, and if the Great Father will give the Pipestone Quarry 
to me in the treaty I will sign it, other^vise I will not." He says "if 
they will reserve the Pipestone Quarry for me, I will sell them the 
rest of the country". 

11. Question. How many Indians went to Washington with Strike- 
the-Ree? 

Answer. There were twelve altogether including Strike-the-Ree. 

12. Question. Were you at another council held at Yankton after 
Strike-the-Ree came back from Washington? 

Answer. Yes. 

13. Question. What year was that, if you can tell? 
(Question withdrawn.) 

14. Question. How long after the treaty was it that you attended 
this council at Yankton? 

Answer. They were in Washington during the winter and came 
back in the spring and had the meeting immediately. 

15. Question. How old are you? 



45 

Answer. Seventy-eight. 

16. Question. What did Strike-the-Ree say at this council at 
Yankton 1 

Answer. I sat right near Strike-the-Ree and Strike-theRee said 
"Listen, children, I have sold the land, all but the Pipestone Quarry, 
as I told you six months ago". I intended to say before that at the 
time of my first visit to the Pipestone Quarry the tribe camped at 
the place fqr some time during the winter, and I remember playing 
with other boys on the ice in the bottom of the quarry with a top of 
pipestone which my father made. At that time I was seven years old. 

17. Question. At this second meeting of the council after Strike- 
the-Ree came back from Washington, what did he say in regard to 
signing the treaty ? 

Answer. He didn 't make a long speech and I don 't remember any- 
thing else that he said. 

18. Question. To refresh your recollection, I will ask you if he 
stated any thing about refusing to sign at first, but when he gave 
them the Pipestone Reservation then he signed? 

(The question is objected to on the ground that it is leading and 
upon the ground heretofore made.) 

Answer. He said that he wouldn't have signed it unless they had 
reserved the Pipestone Quarry. I don't remember his saying that 
he had refused to sign it. 

The said witness was then cross-examined by the counsel for the 
defendant, and in answer to interrogatories, testified as follows : 

1. Question. How long before the treaty of 1859 did you make 
your first visit to the Pipestone Quarry? 

Answer. I was seven years old when I first made a visit to the 
Pipestone Quarry and I was twenty years old when the treaty was 
made. 

2. Question. Where was the tribe living at the time of this first 
council, to which you have referred ? 

Answer. They were living down near Yankton but they all moved 
up near Fort Randall and had the meeting up there. 

3. Question. What country did Strike-the-Ree refer to when he 
said that he would sell it if he were allowed to retain Pipestone 
Quarry ? 

Answer. I don't know exactly but I suppose it was all the land 
that the Yankton Tribe owned outside of the Reservation at this place. 

4. Question. What do you mean by "the Reservation at this 
place?" 

Answer. Well, I mean just the bounds of the Reservation as it 
was fixed in that treaty, from Choteau Creek west; that was the 
eastern boundary of the Reservation. 

Thereupon the witness was asked by the notary if he has anything 
further that he wishes to say in regard to this matter and states that 
is all. 



•1 r^ 

Deposition of Matthew Leeds for claimants, taken at Wagner, 8. D. 
on the 13th day of July, A. D. 1916. 

Claimants' counsel, L. B. French; defendants' counsel, Chas. H. 
Bradley. 

Matthews Leeds, having been produced as a witness on the part 
of the plaintiffs, deposed and said, through Guy Williamson, an 
interpreter also duly sworn by me to truly and faithfully interpret all 
questions propounded to said witness, and the answers given by said 
witness thereto, as follows: That his name is Matthew Leeds, that 
his occupation is that of farmer, that he is eighty-two years of age, 
and is a member of the tribe of the Yankton Sioux Indians, and is 
interested as a member of said tribe in the result of this investigation. 
And thereupon the said Matthew Leeds was examined by counsel for 
the claimants and, in answer to interrogatories, testified as follows : 

1. Question. What is your name? 
Answer. Matthew Leeds. 

2. Question. Where do you live? 
Answer. At White Swan. 

3. Question. To what tribe of Indians do you belong? 
Answer. The Yankton Tribe. 

4. Question. How old are you? 
A. Eighty-two. 

5. Question. Were you ever at the Pipestone Reservation before 
the treaties that were made between the Government and your tribe? 

Answer. No. I never went there until afterwards. 

6. Question. Were you present at a council of the Yankton In- 
dians with reference to the Pipestone Reservation, before the treaty 
was made, held at or near Fort Randall ? 

Answer. Yes. 

7. Question. Did you know at that time Strike-the-Ree ? 
Answer. I did. 

8. Question. Did you hear him make a talk at that council meeting 
of the tribe? 

Answer. I heard it. 

9. Question. What did he say in reference to this treaty about the 
Pipestone Reservation? 

(It is understood that the objections made to the testimony of the 
previous witness shall apply to this witness's testimony.) 

Answer. He said "the Pipestone Quarry belongs to me, to the 
Yankton tribe, the Santee have foolishly tried to sell it, and if the 
Great Father will reserve it for us I will sign this treaty, otherwise 
I will not." 

10. Question. Were you present at another council of the Yankton 
Indians after Strike-the-Ree came back from Washington? 

Answer. I was with the tribe and the whole tribe was there at that 
time. I don't remember any meeting held at Yankton. I remember 
a council that was held near Greenwood. 

11. Question. What did Strike-the-Ree say about the treaty at 
that time ? 



47 



(The defendant objects because he has not testified that Strike-the- 
Ree was there.) 

(The question is withdrawn.) 

12. Question. Were you present at a meeting of the whole tribe 
after Strike-the-Ree returned from Washington ? 

Answer. I was. 

13. Question. Was Strike-the-Ree there? 

Answer. Yes. Smutty Bear also, who was with Strike-the-Ree 
in Washington, was there. 

14. Question. Did Strike-the-Ree make any speech there, any talk 
to the Indians ? 

Answer. He did. 

15. Question. What did he say? 

(The same objection to this testimony as made before.) 
Answer. He said "I told you before I went to Washington that 
if the Great Father would reserve the Pipestone Quarry for us, I 
would sell all this country that belongs to us. Now I have been to 
Washington and have sold it and have come back to you." He said 
"I sold all the land from Willow Creek, about the line of South 
Dakota, and running nortli to Big Stone Lake and thence west along 
the divide to the Missouri River, and have reserved for us to live 
on a reservation twenty miles long and thirty miles wide at Greenwood, 
and the Great Father has agreed for a period of fifty years to support 
us at that Reservation. ' ' 

16. Question. What, if anything, did he say as to whether or not 
the Great Father had given back to the Yankton Indians the Pipe- 
stone Reservation? 

A. He said "I told you the Great Father would reserve to us the 
Pipestone Reservation, otherwise I would not have signed it." 

The said witness was then cross-examined by counsel for defendant 
and, in answer to interrogatories, testified as follows : 

1. Question. Where did your tribe live at the time of the councils 
to which you have referred? 

Answer. At that time the Yankton Indians did not live long in any 
place. They lived by hunting the buffalo and went from one place 
to another over all the place that they claimed as their land. 

2. Question. What did they claim was their land at that time? 
Answer. From the Minnesota River west to the Black Hills and 

south into Nebraska. 

3. Question. What was the eastern boundary of the land of your 
tribe ? 

(The interpreter states he does not give definitely any eastern 
boundary. ) 

Thereupon the witness was asked by the notary if he has anything 
further he wishes to state in regard to the matter, and states that 
he has not. 



48 



Deposition of Sunrise for claimants, taken at Wagner, S. D., 
on the 13th day of July, A. D. 1916. 

Claimants' counsel, L. B. French; defendants' counsel, Chas. H. 
Bradley. 

Sunrise, having been produced as a witness on the part of the plain- 
tiffs, deposed and said, through Guy Williamson, an interpreter also 
duly sworn by me to truly and faithfully interpret all questions pro- 
pounded to said witness and the answers given by said witness thereto, 
as follows: That his name is Sunrise, that his occupation is that of 
farmer, that he is eighty-three years of age, and is a member of the 
tribe of the Yankton Sioux Indians, and is interested as a member of 
said tribe in the result of this investigation. And thereupon the said 
Sunrise was examined by counsel for the claimant and, in answer to 
interrogations, testifies as follows: 

1. Question. What is your name? 
A. Sunrise. 

2. Question. How old are you ? 
A. Eighty-three. 

3. Question. Are you a member of the Yankton Sioux Indian 
Tribe? 

Answer. Yes. 

4. Question. Do you know where the Pipestone Indian Reserva- 
tion is? 

Answer. I know. 

5. Question. Were you ever there before the treaty between the 
Yankton Sioux Indians and the Government? 

Answer. Yes, I saw the Pipestone Quarry before the treaty. 

6. Question. Do you know how long before the treaty? 
Answer. I don't remember just how many years but it was when 

I was seventeen years old I saw the Pipestone Quarry. 

7. Question. AVere you present at a council of the Yankton In- 
dians at or near Fort Randall ? 

Answer. Yes, I was there. 

8. Question. Was Strike-the-Ree tliere? 
Answer. Yes. 

9. Question. Did you hear him make a talk to the Indians there 
at that time. 

Answer. Yes. 

10. Question. What did he say in reference to the Pipestone 
Reservation, if anything? 

(Objected to on the ground it calls for hearsay testimon3^) 
Answer. I heard him say "the Pipestone Quarry belongs to me 

but some people have tried to steal it away, and if I go to Washington 

I will demand the Pipestone Quarry to be given". 

11. Question. Were you present at another meeting of the Yank- 
ton Indians held at Yankton after Strike-the-Ree came back from 
Washington ? 

Answer. I was there at tlie time but did not attend the meeting. 

12. Question. Were you present at any meeting of the Indians 



■iO 



^^i€t' 



where he told the Indians what he had done at Washington with 
reference to the Pipestone Reservation? 
Answer. Yes. 

13. Question. Where was that? 

Answer. Yes, I did attend a meeting at Yankton where he told 
what he did. 

14. Question. You may state what he said. 
(The same objection as before.) 

Answer. He said "I have been to Washington and signed a treaty". 
That is all. "I signed the treaty reser\'ing the Pipestone Quarry 
and also giving to the Great Father a country." 

15. Question. Do you remember anything else that he said? 
Answer. He said some other things but I am getting very old and 

I don't remember what else he said. 

16. Question. To refresh your recollection, did he state in substance 
that at first he refused to sign the treaty, and did not sign it until 
after they gave him the Pipestone Quarry? 

(Objected to on the ground it is leading.) 

Answer. Yes, he said something to that effect. 

17. Question. State as near as you can what he said. 

Answer. As I told you I am very old and my memory is very poor 
and I cannot state the words that he said. 

The said witness was then cross-examined by the counsel for de- 
fendant, and in answer to interrogatories testified as follows : 

1. Question. Where did you and your tribe live at the time of 
these council meetings to which you have referred ? 

Answer. Before the treaty was made the Yankton Indians lived 
east of the Pipestone Quarry. 

2. Question. What was the western boundary of their country at 
that time? 

Answer. The land sold by this treaty was bounded beginning at 
the Missouri River at the Mouth of the Big Sioux River near Sioux 
City ; followed north up the Big Sioux River up to Lake Kampeska, 
and from there west in a general westerly direction to the Missouri 
River, the southern boundarj^ being the river. 

Thereupon the witness was asked by the notary if he has anything 
further he wishes to state in regard to the matter, and states that 
he does not care to say anything more. 



Deposition of Moses Standing Bull for claimants, taken at Wagner, 
S. D., on the 13th day of July, A. D. 1916, 

Claimants' counsel, L. B. French; defendants' counsel, Chas. H. 
Bradley. 

Moses Standing Bull, having been produced as a witness on the 
part of the plaintiffs, deposed and said, through Guy Williamson, an 
interpreter also duly sworn by me to truly and faithfully interpret 
all questions propounded to said witness and the answers given by 
said witness thereto, as follows: That his name is Moses Standing 



GO 



Bull, that his occupation is that of farmer, that he is sixty-seven 
years of age, and is a member of the tribe of the Yankton-Sioux In- 
dians, and is interested as a member of said tribe in the result of this 
investigation. And thereupon the said Moses Standing Bull was 
examined by counsel for the claimants, and, in answer to interroga- 
tories, testifies as follows : 

1. Question. What is your name ? 
Answer. Moses Standing Bull. 

2. Question. Where do you live ? 
Answer. I live near Greenwood. 

3. Question. Are you a member of the Yankton Sioux Indian 
Tribe ? 

Answer. Yes. 

4. Question. Were you present at the meeting or council of the 
tribe before Strike-the-Ree went to Washington to make a treaty with 
the Government? 

Answer. Yes, I was there. 

5. Question. Where was that council held? 
A. Near Fort Randall. 

6. Question. Was Strike-the-Ree there at that time? 
Answer. Yes. 

7. Question. Did he say anything in regard to the Pipestone 
Reservation ? 

(Objected to as leading.) 
Answer. Yes. 

8. Question. What did he say? 

(Objected to on the ground it is hearsay testimony.) 

Answer. He said "the Santees have tried to sell the Pipestone 

Reservation and when I go to Washington I am going to demand it 

be given back to me. 

9. Question. Were you present at a later council of the Indians 
after Strike-the-Ree returned from Washington? 

Answer. Yes. 

10. Question. AVhere was that held? 
Answer. That was held near Yankton. 

11. Question. What, if anything, did Strike-the-Ree say about the 
Pipestone Reservation at that time? 

(Objected to on the ground it is leading.) 

Answer. He said "I told you six months ago before I went to 
Washington that I was going to demand the Pipestone Quarry and 
now it has been six months and I signed a treaty giving us the Pipe- 
stone Quarry. 

12. Question. How old are you ? 
Answer. Sixty-seven. 

No cross-examination by counsel for defendant. Thereupon the 
witness was asked by the notary if he has anything further he wishes 
to state in regard to the matter, and states this is all he has to say. 



51 



Deposition of Iron Bull for Claimants, taken at Wagner S. D., 
on the 13th day of Jnly, A. D. 1916. 

Claimants' coiinse], L. B. French; defendants' counsel, Chas. H. 
Bradley. 

Iron Bull, having been produced as a witness on the part of the 
plaintiffs, deposed and said, through Guy Williamson, as interpreter 
also duly sworn by me to truly and faithfully interpret all questions 
propounded to said witness, and the answers given by said witness 
thereto, as follows : That his name is Iron Bull, that his occupation 
is that of farmer, that he is seventy-three years of age, and is a 
member of the tribe of the Yankton Sioux Indians, and is interested 
as a member of said tribe in the result of this investigation. And 
thereupon the said Iron Bull was examined by the counsel for claim- 
ants and, in answer to interrogatories, testified as follows : 

1. Question. What is your name? 
Answer. My name is Iron Bull. 

2. Question. Ho'sv old are you ? 
Answer. Seventj^-three. 

3. Question. Where do you live? 

Answer. I live five miles north of Greenwood. 

4. Question. Are you a member of the tribe of Yankton Sioux 
Indians ? 

Answer. Yes. 

5. Question. Were you ever at the Pipestone Reservation before 
the treaty between the Yankton Indians and the United States made 
about 1858? 

Answer. Yes, 

6. Question. Were you present at a council of the Yankton Indians 
at which Strike-the-Ree made a speech in regard to going to Wash- 
ington to make a treaty in regard to the land of the Sioux Indians ? 

Answer. Yes, I was there. 

7. Question. Where was it held? 
Answer, At Fort Randall. 

8. Question. Did Strike-the-Ree make a speech there to the In- 
dians ? 

Answer. Yes, he made a speech to the Indians. 

9. Question. What did he say to them in reference to the Pipe- 
stone Quarry? 

(Objected to on the ground it calls for hearsay testimony.) 
Answer. He said "My children, I have heard that the Santees 
have tried to sell the Pipestone Quarry which belongs to us. Now 
the Great Father has asked me to go to Washington to sign this 
treaty and I am going, but if they do not reserve the Pipestone Quarry 
to us I will not sign the treaty". 

10. Question. Were you present at another council of the Yankton 
Sioux Indians at which Strike-the-Ree made a speech, after he came 
back from Washington? 

Answer. Yes, I was there. 

11. Question. What did Strike-the-Ree say, if anything, about the 
Pipestone Reservation at that time ? 



(The same objection as made above.) 

Answer. At this meeting at Yankton Strike-the-Ree said ' ' Children, 
I have been to Washington for the last six months arguing with the 
Great Father on this treaty. I have now secured the treaty reserving 
for us the Pipestone Quarry and have signed the treaty selling the 
balance of the lands which we own. 

The said witness was then cross-examined by the counsel for de- 
fendant, and, in answer to interrogatories, testified as follows: 

1. Question. Did Strike-the-Ree make long speeches at these two 
council meetings to which you refer? 

Answer. I have simply told you what I remember of this speech. 
He may have made a long talk but I am not a shorthand reporter and 
there was none there, and I don't remember anything else he said. 

2. Question. How old did members of the tribe have to be to be 
admitted to the councils of the tribe ? 

A. Anybody could go into these councils that wished, the small 
boys as well as the older men. At that time I was about fifteen years 
old. 

Thereupon the witness was asked by the notary if he has anything 
further he wishes to state in regard to the matter, and states that 
he has not. 



58 

Court of Claims of the United States. 

No. 31,253. 



YANKTON SIOUX INDIANS vs. THE UNITED STATES. 



EVIDENCE FOR CLAIMANTS. 



INDEX. 
Reply of the Interior Department p. 



L. B. French, 
Attorney for Claimant. 



Department of the Interior 

Washington, Nov. 2, 1916. 
Dear Mr. Putnam: 

Referring to the petition filed in the Court of Claims in the case 
of the Yankton Sioux Indians v. The United States, No. 31253, 
and to the formal request dated September 19, 1916, upon this 
Department by the Court, on motion of Mr. L. B. French, attorney 
for the Indians, for certain evidence relating to the case, the fol- 
lowing information is respectfully submitted. For convenient 
reference the requests in the motion for data are repeated and the 
answers follow : 

1. Papers in regard to the treaty that was made between the 
Indians and the United States in the winter of 1858-9, being 
known as the treaty of the Yankton Indians with the United 
States, which has been duly confirmed by Congress. Said 
papers and talks relate to talks had between the Indians and 
the United States at the time of making such treaty. 

August 18, 1913, the Indian Bureau advised the said attorney 
that a careful search had been made of the files of that office but 
no record was found of any talks had with Yankton Indians prior 
to or during the negotiations in connection with the treaty with 
these Indians of April 19, 1858 (11 Stat. L., 743). 

A further and more extended search has been made of the records 



54 

of the Indian Office but no papers of the character indicated were 
found. The Department is therefore unable to furnish such papers 
or copies thereof. 

2. That there are on file in the office of the Commissioner of 
Indian Affairs other papers, to-wit: directions for proceedings 
by one G. A. Lance, Agent of the United States, in taking 
charge of the Pipestone Reservation and removing therefrom 
all persons except the Yankton Indians. The directions are 
dated June 6, 1891. We desire a report of the parties who did 
this work, made to the Department in June, 1891. 

No record is found in the Indian Bureau of the papers or corre- 
spondence above referred to ; nor does it appear from the records 
that instructions of the character indicated were given to one 
" G. A. Lance, Agent of the United States." 

However, it appears from an informal conversation with the said 
attorney that what he had in mind by the foregoing request was 
the removal of intruders from the Pipestone Reservation by United 
States troops. 

The records show that in 1887, the Agent of the Yankton Agency 
recommended that certain intruders on the Pipestone Reservation 
be removed, and that under date of March 3, 1887, the Acting 
Secretary of the Interior directed the removal of such intruders 
upon the lands in question, with all their property and eJBfects, 
under the provisions of Section 2149 of the Revised Statutes of the 
United States. It appears further that J. W. Bean, Captain, Fif- 
teenth Infantry, U. S. A., acting under orders of April 26, and 
October 3, 1887, from the War Department, proceeded to the Pipe- 
stone Reservation in company with the Indian Agent and with an 
escort of troops, and on October 11, 1887, succeeded in effecting 
the removal of certain trespassers thereon, as set out in the report 
dated November 2, 1887, of J. F. Kinney, U. S. Indian Agent of 
the Yankton Agency. 

Photostatic copies of the correspondence mentioned are inclosed. 
Such copies are certified. 

3. Plaintiffs also desire a copy of the proceedings showing 
that the money received for right of way for railroad across 
the Pipestone Reservation, was paid to the Yankton Indians 
by the United States. 

The records of the said Bureau show that in 1891 there was 
received from the Cedar Rapids and Northern Railway Company 
for its right of way through the Pipestone Reservation, Minnesota, 
under the provisions of the Act of March 2, 1889 (25 Stat. L., 
1012), the sum of $1,740.00 as damages; and that under date of 
January 9, 1891, the Secretary of the Interior granted authority 



55 

for the Indian Agent in charge of the Yankton Agency to pay per 
capita to the Yankton Indians the said sum of $1,740.00 less the 
expenses of appraising the damages to the lands of the Indians — 
$40.00. The records also show that E. W. Foster, United States 
Indian Agent, Yankton Agency, disbursed the sum of $1,657.26 to 
1,674 Indians, as shown on the roll dated May 9, 1891, and the 
further sum of $25.74 to 26 Yankton Indians, as per supplemental 
roll of June 30, 1892. 

Photostatic copies of these rolls marked "Exhibits 1 and 2," 
respectively, are transmitted herewith. 

It is noticed that there appears to be a balance of $17.00 of the 
said sum of $1,700.00 which does not seem, from the payment rolls, 
to have been accounted for. 

Cordially yours, 

Bo Sweeney, 



Hon. S. a. Putnam, 

Chief Clerk, Court of Claims. 
Inclosure 75017. 



Assistant Secretary. 



30035 COPY. 



Fort Randall, D. T. 

October mnd, 1887. 



To the Assistant Adjutant General 

Headquarters Department of Dakota, 
Thro' Headquarters Fort Randall, D. T. 
Sir: 

I have the honor to inform you that in compliance with instruc- 
tions contained in endorsements from Headquarters Department of 
Dakota, dated April 26th and October 3rd, 1887, and Orders No. 
83 Post of Fort Randall, Dakota, I proceeded to the Red Pipestone 
Indian Reservation, Minn., on the 9th instant, arriving there on 
the 11th instant. 

I at once sent for the settlers, and read to them my orders. I 
then informed them that the question of their removal was beyond 
discussion, that my orders were imperative in the matter, but that 
I did not wish to use any harsh measures. That I had requested 
an interview to ascertain their feelings, and if they felt disposed to 
leave the Reservation without further trouble, to make their removal 
as pleasant as possible, consistent with my instructions. After due 
consideration they all promised to leave, and take with them all 
their personal eflFects on or before the 18th instant, which they have 
done. One man, Mr. Huntley, whose house stands, one half inside 
the Reservation line and the other half outside, was allowed to 
remain in his house, but entered into a written agreement with Mr. 
Kinney the Indian Agent to have all his buildings removed on or 



56 

before June 1, 1888, and placed himself under two hundred dollar 
bonds for the faithful performance of his part of the contract. 

The others signed a written agreement not to return to the reser- 
vation to live, or to occupy any buildings thereon, or to allow any 
person or persons to occupy any buildings thereon owned by them. 
They also entered into a written agreement with the Indian Agent, 
promising to have all their buildings removed on or before March 
1st, 1888. 

In my judgment the removal is permanent and that the use of 
troops are no longer required in the matter. 

The agreement for the removal of the buildings, is in the hands 
of the Indian Agent, and will, no doubt, be forwarded to the In- 
terior Department. 

I am, Sir, Very respectfully, 

Your obedient servant, 

J. W. Bean, 
Captain, 15th Infantry. 



Headquarters Department of Dakota, 

St. Paul, Minn., October 28/87. 
Official copy respectfully forwarded through the Headquarters 
Division of the Missouri, in connection with instructions from the 
War Department, dated September 20th,' 1887. 

Thomas M. Vincent, 
Assistant Adjutant General, 
For and in absence of the 
Brigadier General Commanding. 



1st Indorsement 
Headquarters Division of the Missouri, 

Chicago, Nov. 1, 1887. 
Respectfully forwarded to the Adjutant C4eneral of the Army. 
This seems to be a satisfactory settlement of the question. 

Alfred H. Terry, 
Major General — Commanding . 



6274 A. G. O. 1887 with 5199 A. G. 0. 1887 

Chicago, Nov. 1, 1887. 
Missouri, Division of 
Major General Alfred H. Terry Commanding 
Case No. 71 
Forwards, in connection with War Dept. instructions of 20th 



57 

Sept., report of Capt. J. W. Bean, 15th Inf. of removal of settlers 
from Red Pipestone Indian Reservation, Minn. 

Official copy — File. L. C. Drum, 

Adjutant General. 

A. G. O. Nov. 5, 87. 
For the Honorable Secretary of the Interior. 

War Department, Nov. 9, 1887. 
Official copy respectfully furnished for the information of the 
Honorable Secretary of the Interior. Wm. C. Endicott, 

Secretary of War. 

Department of the Interior, Nov. 10/87 . 
Respectfully referred to the Com'r of Indian Affairs. 

S. A. Jones, 
Acting Chief Clerk. 



United States Indian Service, 

Yankton Agency, Nov. 2, 1887. 
Hon. Commissioner Indian Affairs, 
Washington., D. C. 
Sir : I have the honor to report the result of my visit to the Red 
Pipe Stone Reservation. With Captain Bean U. S. A. and ten sol- 
diers acting under orders from the War Department, we left 
Arrnom Oct. 10th last and arrived at Pipe Stone City in Minnesota, 
a short distance from the Dakota line, on the evening of the 11th, 
The following day I hired a conveyance and the Captain and I 
visited the families living on the reservation, notifying each to leave 
immediately. Two different conferences were held with the men 
who were living with their families on the reservation. All agreed 
to leave by the following Monday night; as they were made to 
understand that unless they left peaceably they would be evicted by 
force; the soldiers being used for the purpose of ejecting them. It 
was made apparent in these interviews, that these intruders were 
on the land for the purpose of acquiring some legal right to the 
soil, and in fact this was not denied by those whose houses and 
farms were clearly within the lines of the reservation. They ad- 
mitted that they had tendered filings at the land office, which had 
been refused. Lieut. Bean U. S. A, from Fort Randall was detailed 
as Civil Engineer, who in running the lines of each side of the 
Section, found that one large two story house on the north line, 
was on the reservation, as was part of the addition, on the north 
side, a corn crib, and part of the barn attached to the premises. I 
refer to the report of Lieut. Bean which I have not seen, but which 
will probably reach the Department, and also to the report of Cap- 



58 

tain Bean for full information on the subjects which particularly 
fell to them, and what they did. 

I found seven houses on the reservation, and six occupied — one 
having been abandoned. The names of the settlers are the follow- 
ing. C. C. Goodnow, Laura Goodnow his mother, H. W. George, 
W. W. Whitehead, F. A. Marvin, W. H. Hackabent and G. W. 
Huntly. Mr. Marvin had abandoned his house, but had not given 
up his settlement. Mr. Goodnow occupied a large country house, 
claimed 160 acres, and had located his mother on an 80 acre tract 
adjoining his claim. The other houses were less pretentious, except 
Mr. Huntly 's, although the houses of Mr. George and Mr. White- 
head were full average country frame farm houses. The other three 
were cheap one story frame houses. The land claimed by these 
intruders, is good farming land, as is all of the land on the reser- 
vation, with the exception of one or two acres possibly three acres, 
covered by a small lake, or pond of water, and a strip running 
nearly across the section which forms a most valuable stone quarry, 
differing from the pipe stone which is found below the surface. 
The bed stone quarry yields a high grade of most valuable building 
stone, susceptible of a high polish, is hard and very durable. The 
best buildings of Pipe Stone City are of this stone. Aside from the 
pipe stone from which the Indians make their pipes, and various 
unique ornaments, the value of the stone quartz can not be too 
highly estimated. I venture the opinion that when this stone is 
fully known and appreciated that it will be used in the erection of 
the walls of our most expensive public buildings. The reservation 
contains one section of land, is regarded by the indians by reason 
of its traditions with veneration. As there were at the time of my 
visit some eighty-five Yanktons there including women and child- 
ren, it was a matter of great gratification to all of them to know 
that the intruder, who had for some years persisted in their efforts 
to rob them, were to be driven off. Under the order of the War 
Department the officer in command of the detachment, was forbid- 
den from destroying property, and hence the houses of the intruders 
were left intact. 

On Monday evening Oct. 17th the time given the intruders to 
leave, the Captain and I again took a drive over the reservation and 
found the houses vacated, except the house of Mr. Huntley, he 
claiming that he did not know just where the north line was at the 
time he built. I enclose copy of an agreement he signed agreeing 
to remove his house. As will be seen I give him until the first day 
of June next to remove his buildings. 

Captain Bean took an obligation from parties to himself that 
they would not return to occupy their houses. His or ours were 
to make a ''permanent eviction" and for his own protection he 
had them sign a paper to remain away. I also inclose copy of an 
agreement signed by five persons that they will remove their build- 
ings by the first day of March next. Mr. Hochabout's name does 



59 

not appear to this paper, as he was in the country when I left, but 
he agreed to the terms and will abide by them. Mr. Goodnow, 
George, and "Whitehead, are the most offended, with Goodnow as 
the leader of all; formerly an officer in the Land Office. 

I also found a rail road track laid across the reservation near the 
center, on which a rail road has been operated for some years. I 
inclose copy of letter received from the company since my return, 
the result of two telegrams sent. I respectfully advise that the 
company be requested to pay an annual rental of $50 a year from 
the time they made the road bed to this time, and $100 a year from 
this time forward, or in default, that they remove their track from 
the reservation. This will be satisfactory to my indians, as since 
my return, I have had a full consultation with a large number of 
them, including the chiefs and head men in the . There is 

also a fair ground laid off and fenced on the reservation ; on the 
land claimed by Mr. Goodnow, and with his written consent I in- 
close copy of a proposition made by the officers of the Association , 
which I recommend be approved by the Commissioner. This is 
the desire of my indians as proposed in the gathering referred to; 
as the fair ground and the holding a fair one week in the year does 
not interfere at all with getting out pipe stone, and is more than 
half a mile from their quarry. 

By reason of the great value of the Red Pipe Stone Reservation, 
and the sacred tradition in the minds of my indians associated with 
it, I would most respectfully recommend for its better protection, 
that at no distant day it be securely enclosed, or that some person 
be appointed to watch over it to prevent vandaHsm. This is the 
desire of the indians. Very respectfully, 

J. F. Kinney, 
U. S. In. Agent. 
Distance to Pipe Stone : 

Agency to Arrnom 28 miles 

Arrnom to Tripp 20 Rail 

Tripp to Mitchell 34 " 

Mitchell to Woonsockett .... 29 " 

Woonsockett to Pipestone . . . 104 " 

Total 215 



COPY 

Pipestone, Minnesota, Oct. 17th, 1887. 
The undersigned late settlers on the Red pipestone Indian Reser- 
vation, having vacated said Reservation with our family and per- 
sonal property, and signed an agreement not to return to live on 
said reservation do further agree that we will remove our bouses 



60 

and buildings outside the lines of said reservation between this time 
and the first day of March next. 

c. c. goodnow. 

Laura Goodnow. 

H. W. George. 

W. W. Whitehead. 

F. A. Marvin. 



COPY. 



Pipestone, Minnesota, Oct. 17, 1887. 
The undersigned officers of the Pipestone County Agricultural 
and Mechanical Association of Pipestone, having located our fair 
ground and built our fair ground fence, track and buildings on the 
Red pipestone Indian Reservation which improvements were made 
on the quarter section of land on the said reservation claimed by 
C. C. Goodnow as a squatter, and so located by his written permis- 
sion, do now propose that in case the Yankton Indians who own 
said reservation will consent thereto, to lease said grounds, which 
contain about twenty-five acres, for three years from the first day of 
January next. And in case said Indians agree to lease said land 
for said period, we agree to pay for the use of said land fifty dollars 
for the present year, payment to be made January 1st, 1888, and 
seventy-five dollars for the use of said ground for the year 1888, 
payment to be made Oct. 1st, 1888. One hundred dollars for the 
year 1889, to be paid the first day of Oct., 1889. One hundred 
dollars for the year 1890, to be paid Oct. 1st, 1890, and we agree to 
enter into a written contract in case this proposition is accepted by 
said Indians, and ratified by the Interior Department, said agree- 
ment to bind said association according to the conditions in this 
proposition. 

Signed John Stuart, Vice-Pres. 

A. Sechler, Secretary. 

W. G. Stover, Treasurer. 



COPY 

Burlington, Cedar Rapids and Northern Railway 

Assistant Superintendent's Office 

G. A. Goodell, Ass't superintendent 

Estherville, Iowa, Oct. 22nd, 1887. 
Major J. F. Kinney, Esq., 

U. S. Indian Agent, 

Greenwood, Dak. 
Dear Sir : Your telegram of Oct. 18th from Pipestone was rec'd. 
I have delayed answering until I could consult with our counsel in 
regard to the matter. 



61 

At the time of building our line through Pipestone, we filed a 
notice and map in the Gen. Land Office. Our counsel advises us 
that this gives us right of way through this reservation , and that 
our title to our right of way is good. 

However we shall not adverse to strengthening that title by pro- 
curing a lease from your Indians, providing we can do so at a 
normal expense. Under the circumstances we should be glad to 
receive from you a proposition for the lease. 

Trusting to hear from you soon, 

I remain yours very truly, 

(Sig) G. A. GOODELL, 

Asst. Supt. 



COPY 

Pipestone, Minnesota, October 15th, 1887 . 
This agreement entered into this fifteenth day of October, A. D. 
1887, Whitnesseth, that whereas by a survey of the lines of the 
Red pipestone Yankton Indian reservation it is found that the two 
story frame house of G. W. Huntley is located on the northwest 
corner of said reservation by about the width of said house, now 
this agreement made between J. F. Kinney, U. S. Indian Agent 
for the Yankton Indians, and G. W. Huntley, Witnesseth, that the 
said Huntley binds himself, his heirs, executors, or administrators 
and assigns, for and in consideration of being allowed by said Kin- 
ney as such agent the privilege of remaining with his house on said 
reservation until the first day of June next, to remove with his 
family and all his personal property and effects of every description, 
and his house and all buildings from said reservation and not return 
with his family or property to remain on said reservation. In de- 
fault of a strict compliance with this agreement as herein provided, 
the said Huntley agrees to pay to said Kinney for the use of said 
Indians the sum of two hundred dollars, and fifty dollars additional 
for every month he remains on said reservation after the first day 
of June next. 

then this obligation is to be null and void otherwise in full force 
and effect. G. W. Huntley. 

Pipestone, Minnesota, Oct. 15th, 1887. 
I guarantee the faithful performance of all the conditions of this 
contract by G. W. Huntley as stipulated in the within. 

J. H. Nichols. 



Office of Indian Affairs 
29563 Rec'd Nov. 7, 1887 Case No. 11 
Yankton Agency, Novewher :2, 1887. J. F. Kinney, Agt. 
Report of visit to the Red pipe stone Indian Reservation to evict 



62 

intruders. All left and sign paper not to return, and to remove 
their buildings. 

4 inc. To Agt. Jany. 12/88. 



Annuity Pay-Roll. 
For instruction fee to Foster, Agt., March 14, 1891, and from Sec- 
retary to Commissioner Jany. 9, 1891. 
We, the Heads of Families, and individuals without families, of 
the Yankton Sioux Tribe of Indians, hereby acknowledge the receipt 
of One thousand six hundred and fifty-seven and y^-^ Dollars 
($1657.26), from E. W. Foster, United States Indian Agent, in 
the sums severally affixed to our names, being our proportion of the 
Annuity of said Tribe of Indians for the year one thousand eight 
hundred and ninety -one. 

[Pay-roll, showing payment of 99 cents to each person whose 
name appears thereon, not printed.] 



Annuity Pay-Roll. 

Certificate of Witnesses. 

We, the undersigned, hereby certify, on honor, that we were 
present and witnessed the payment by E. W. Foster, United States 
Indian Agent, on the respective dates mentioned in the foregoing 
Pay-Roll, of the several sums to the individuals, opposite whose 
names our signatures are affixed as witnesses, and that we saw said 
individuals sign the same, by writing their names or making their 
marks; and that the pages of said Pay-Roll are numbered from 
one (1) to forty-four (44) inclusive, and contains the names of 
Seventeen hundred sixteen (1716) persons, numbered from one (1) 
to seventeen hundred sixteen (1716) inclusive; and we further de- 
clare our entire disinterestedness in this matter. 

Dated May 9, 1891 J. B. Wallbridge, 
Dated May 9, 1891 C. H. Bonnin, 
Dated May 9, 1891 S. C. De Fond, 



Witnesses. 



Certificate of Interpreter. 



I, C. F. Picotte, Interpreter, hereby certifj' that I was present 
and witnessed the payment by E. W. Foster, United States Indian 
Agent, on the respective dates mentioned in the foregoing Pay-Roll, 
of the several sums to the individuals who have receipted for the 
same; that I saw said individuals sign the same, by writing their 
names or making their marks; that I fully explained the nature of 



63 

said payments to said individuals ; that the pages of said Pay-Roll 
are numbered from one (1) to forty-four (44) inclusive, and con- 
tains the names of seventeen hundred sixteen (1716) persons, 
numbered from one (1) to seventeen hundred sixteen (1716) in- 
clusive. 

Dated May 9, 1891 C. F. Picotte, 

Interpreter. 

Certificate of Agent. 

I, E. W. Foster, United States Indian Agent, hereby certify, on 
honor, that on the respective dates mentioned in the foregoing Pay- 
Roll I made payment of the several sums to the individuals who 
have receipted for the same ; that the pages of said Pay-Roll are 
numbered from one (1) to forty-four (44) inclusive, and contains 
the names of seventeen hundred sixteen (1716) persons, numbered 
from one (1) to seventeen hundred sixteen (1716) inclusive; and 
that the aggregate amount of said payments was One thousand six 
hundred fifty-seven and t^\ Dollars ($1657.26). (Payment to 
Nos. 162, 175, 240, 312, 397, 398, 399, 400, 401, 415, 592, 620, 
716, 734, 843, 884, 1002, 1042, 1043, 1073, 1139, 1140, 1141, 
1142, 1143, 1152, 1168, 1220, 1230, 1324, 1428, 1451, 1461, 
1462, 1463, 1464, 1465, 1466, 1475, 1589, 1670, 1671, amounting 
to forty-one and -^-^ Dollars ($41.58) not having been made.) 
Dated May 9, 1891 E. W. Foster, 

Agent. 



Annuity Pay-Roll. 

We, the Heads of Families, and individuals without families, of 
the Yankton Sioux Tribe of Indians, hereby acknowledge the re- 
ceipt of Twenty-four yVo Dollars ($24.75) from E. W. Foster, 
United States Indian Agent, in the sums severally affixed to our 
names, being our proportion of the Annuity of said Tribe of In- 
dians for the year one thousand eight hundred and ninety -two. 

[Pay-roll, showing payment of 99 cents to each person whose 
name appears thereon, not printed.] 



Annuity Pay- Roll. 
Certificate of Witnesses. 

We, the undersigned, hereby certify, on honor, that we were 
present and witnessed the payment by E. W. Foster, United States 
Indian Agent, on the respective dates mentioned in the foregoing 



64 

Pay-Roll, of the several sums to the individuals, opposite whose 
names our signatures are affixed as witnesses, and that we saw said 
individuals sign the same, by writing their. names or making their 
marks ; and that the pages of said Pay-Roll are numbered from one 
(1) to two (2) inclusive, and contain the names of forty-two (42) 
persons, numbered from one (1) to forty-two (42) inclusive; and 
we further declare our entire disinterestedness in this matter. 
Dated June 30, 1892 J. B. Wallbridge, 
Dated June 30, 1892 C. H. Bonnin, 

Witnesses. 

Certificate of Interpreter. 

I, C. F. Picotte, Interpreter, hereby certify that I was present 
and witnessed the payment by E. W. Foster, United States Indian 
Agent, on the respective dates mentioned in the foregoing Pay-Roll, 
of the several sums to the individuals who have receipted for the 
same; that I saw said individuals sign the same, by writing their 
names or making their marks ; that I fully explained the nature of 
said payments to said individuals; that the pages of said Pay-Roll 
are numbered from one (1) to two (2) inclusive, and contain the 
names of forty-two (42) persons, numbered from one (1) to forty- 
two (42) inclusive. 

Dated June 30, 1892 C. F. Picotte, 

Interpreter. 

Certificate of Agent. 

I, E. W. Foster, United States Indian Agent, hereby certify, on 
honor, that on the respective dates mentioned in the foregoing Pay- 
Roll I made payment of the several sums to the individuals who 
have receipted for the same ; tliat the pages of said Pay-Roll are 
numbered from one (1) to two (2) inclusive, and contain the 
names of forty -two (42) persons, numbered from one (1) to forty- 
two (42) inclusive; and that the aggregate amount of said pay- 
ments was Twenty-four and y^V Dollars ($24.75) ; (Payment to 
Nos. 2, 11, 12, 13, 14, 16, 17, 20, 26, 27, 29, 31, 32, 40, 41, 42, 
amounting to Fifteen and -^^ Dollars ($15.84) not having been 
made.) 

Dated June 30, 1892 E. W. Poster, 

Agent. 



65 



Jn tif? l^nxUh ^Mm (Hmrt 
of OIlatm0 



THE YANKTON SIOUX INDIANS, | 

vs- [ NO. 31253. 

THE UNITED STATES. 



INDEX 



Request for Findings of Fact 65 

Brief and Arg-ument 72 

mi 

L. B. French, Attorney for Claimants 



CLAIMANTS REQUEST FOR FINDINGS OF FACT 

The claimants considering the facts hereinafter stated 
to have been proven, and deeming them material to the due 
presentation of this case in the findings of fact, request the 
Court to find the same as follows : 



I. 

The Yankton Sioux Indians, the petitioners in this pro- 
ceeding, are either the original parties to the treaty between 
the United States and the Yankton Sioux Indians made and 
entered into in 1858 (11 Stat. L., 743), ratified February 16, 
1859, proclaimed February 26, 1859, and also either the 
original parties named in Article 16 of the treaty made and 
entered into with the Yankton Sioux Indians August 15, 



66 

1894 (28 Stat. L., 315), or their descendants and other legal 
representatives entitled to receive the benefits of those 
treaties. 

II. 

The Pipestone Reservation is a tract of land a title more 
than a mile square, situated in Sections 1 and 2, Township 

106 North, Rang-e 46 West, and Sections 35 and 36, Township 

107 North, Range 46 West, Fifth Principal Meridian, Minne- 
sota, containing 648.40 acres, and embracing the quai-ries of 
the well-known "red Pipestone" and title thereto in fee is 
claimed by said Yankton Sioux Indians (Rec. pp. 11, 12) 
(H. R. Doc. No. 535, p. 31, 56th, Cong. 1st, Sess.) 

III. 

In 1851 a treaty was made at Tiaverse des Sioux with 
the Sisseton and Wahpeton Indians (10 Stat. L. 949), by 
which treaty those Indians relinquished to the United States 
lands in the Territory of Minnesota lying east of a line de- 
fined in said treaty; and following this treaty the Yankton 
Sioux Indians charged the Sisseton and Wahpeton Indians 
with attempting- to cede to the United States lands belonging 
to the Yankton Sioux Indians and particularly the "Pipe- 
stone quarries." (Rec. pp. 12, 44 ; Ind. Com'r Rept. 1857, pp. 
52, 59, 83, 84, 106.) 

IV. 

The Pipestone Reservation was well within the country 
which had been prior to 1851 the hunting ground of the 
Yankton Sioux Indians, and which they claimed as their land. 
(Rec. pp. 44, 45, 47, 48, 49, 51, Ind. Com'r Rept. 1857, pp. 
59, 83, 84, 106.) 

V. 

That immediately after the treaty of Traverse des Sioux 
in 1851 by the Sisseton and Wahpeton Indians, the Yankton 



67 

Sioux Indians because of the attempted sale of the Pipestone 
quarries by the Sisseton and Wahpeton Indians, made it a 
practice at all times and in every way that was open to 
them, to insist that the treaty was an attempt by the latter 
Indians to cede property which they did not own, and an- 
nually, at the payments made to the Sisseton and Wahpeton 
Indians, attended such payments and demanded a right to 
share in the money paid to the Sissetons and Wahpetons for 
said lands, on the ground that it was payment for lands 
owned by the Yankton Sioux Indians. (Rec. p. 14, Ind. Com'r 
Rept. 1857, p. 59) . So persistent were the Yankton Sioux In- 
dians in their demands that in 1858 a meeting was had with 
the Yankton Sioux Indians at Washington for the pui*pose of 
rectifying their complaint that the United States had at- 
tempted to purchase from the Sisseton and Wahpeton In- 
dians lands which belonged to the Yankton Sioux Indians, 
and in April, 1858 a treaty was made with them. (11 Stat. 
L., 473.) (Rec. p. 15). 

VI. 

By this treaty of 1858, Article 8, it is provided "the said 
Yankton Indians shall be secured in the free and unrestricted 
use of the red Pipestone quarry, or so much as they have 
been accustomed to frequent and use for the pui-pose of 
procuring stone for pipes; and the United States hereby 
stipulate and agree to cause to be surveyed and marked so 
much thereof as shall be necessary and proper for that pur- 
pose, and retain the same and keep it open and free to the 
Indians to visit and procure stone for pipes so long as they 
desire." (Rec. p. 15) . 

VII. 

The Pipestone quarry was made the sine qua non of the 
treaty of 1858, until this was assured him Struck-by-the- 
Rees a Yankton Sioux Indian would not sign. (Rec. p. 17.) 
The Yankton Sioux Indians understood that the above 



68 

article eight of the treaty returned to them, and recognized 
their absolute title to the Pipestone Reservation, and they 
have always since then claimed that under said treaty, what- 
ever may have been the wording thereof, they received and 
the United States gave to them the actual title as well as 
the right of possession to the Pipestone Reservation. (Rec. 
pp. 17, 44, 45, 46, 47, 48, 49, 50, 51 and 52; Sen. Ex. Doc. 
No. 27, p. 20, 53d, Cong., 2d, Sess. ; same Doc. p. 55.) 

VIII. 

In the execution of its agreement under Article 8 of said 
treaty the United States caused so much of the quarry as 
appeared to be necessary and proper for the purposes of the 
Reservation to be surveyed and marked. A diagram and the 
field notes were duly returned and recorded in the General 
Land Office, and in the office of the Surveyor General of 
Minnesota, and in February, 1860, copies were transmitted 
to the Surveyor General of the United States for that state 
with instructions to respect them when the public surveys 
reached that locality. Afterwards, for some unexplained 
reason and in violation of the instructions, the Reservation 
was surveyed with other public lands in the vicinity, where- 
upon the Commissioner directed the Surveyor General to 
locate the Reservation on the official plat in his office from 
the field notes and plat of the original survey, or, if im- 
possible, to direct a resurvey so that the Reservation might 
be located and described upon the official plats and its bound- 
aries respected in accordance with the treaty. In pursuance 
of these instructions the Surveyor General caused a resurvey 
of the quarry, and its boundaries as resurveyed correspond 
and are substantially co-incident with the lines of the 
original survey. (H. R. Doc. 535, p. 31, 56th Cong., 1st, 
Sess. The U. S. vs. Cai-penter, 111 U. S. 347; 28 Lmv Ed. 
451.) 

IX. 

That a patent issued May 15, 1874 to a settler upon the 



69 

Reservation was held invalid by the Supreme Court of the 
United States. (U. S. vs. Caipenter, 111 U. S. 347; 28 Law 
Ed. 451.) 

X. 

That in 1887 the agent of the Yankton Agency recom- 
mended that certain intruders on the Pipestone Reservation 
be removed, and that under date of March 3, 1887, the acting 
Secretary of the Interior directed the removal of such in- 
truders upon the lands in question, with all their property 
and effects, and that a detachment of the United States 
Army acting under orders of April 26 and October 3, 1887 
from the \Var Department, proceeding to the Pipestone 
Reservation in company with the Indian Agent and with an 
escort of troops, and on October 11, 1887 effected the re- 
moval of trespassers thereon. (Rec. pp. 54, 55, 56, 57, 58, 
59, 60, 61, 62.) 

XL 

That in 1891 there was received by the United States 
from the Cedar Rapids & Northern Railway Company for 
its right of way through the Pipestone Reservation, Minne- 
sota, the sum of $1740.00 as damages, and that under date 
of January 9, 1891, the Secretary of the Interior granted 
authority for the Indian Agent in charge of the Yankton 
Agency, to pay per capita to the Yankton Indians the said 
sum of $1740.00 less the expense of appraising the damages 
to the lands of the Indians, — $40.00, and that the Indian 
Agent at Yankton Agency disbursed the sum of $1657.26 
to 1674 Indians as shown on the roll dated May 9, 1891, and 
the further sum of $25.74 to 26 Yankton Indians as per sup- 
plemental roll of June 30, 1892. (Rec. pp. 54, 55, 62, 63, 64.) 

XIL 

That because their possession of the Pipestone Reserva- 
tion had been a fruitful source of trouble to them since the 



70 

treaty of 1858, on account of the encroachment and depreda- 
tions of white men and other Indians, and because their 
title to the Reservation was questioned by the United 
States, the Yankton Sioux Indians demanded, in the negotia- 
tions by the Government with them for the treaty ratified 
August 15, 1894, (28 Stat. L., 315), that the absokite owner- 
ship of the Pipestone Reservation by them should be settled 
by said treaty, making that the condition of their negotia- 
tions with the Commissioners of the United States, as had 
also been done by the Indians in the treaty of 1858, (Sen. 
Ex. Doc. 27, p. 21, 53d Cong., 2d, Sess.) ; and that in response 
to that demand it was provided by Article 16 of said treaty 
approved by Congress August 15, 1894, (28 Stat. L., 315), 
that "if the Government of the United States questions the 
ownership of the Pipestone Reservation by the Yankton 
tribe of Sioux Indians under the treaty of April 19, 1858, in- 
cluding the fee to the land as well as the right to work 
the quarries, the Secretary of the Interior shall as speedily 
as possible refer the matter to the Supreme Court of the 
United States to be decided by that tribunal. And the Uni- 
ted States shall furnish without cost to the Yankton Indians 
at least one competent attorney to represent the interest of 
the tribe before the Court. If the Secretary of the Interior 
shall not, within one year after the ratification of this agree- 
ment by Congress, refer the question of the ownership of 
the said Pipestone Reservation to the Supreme Court as 
provided for above, such failure upon his part shall be con- 
strued as and shall be a waiver by the United States of all 
its rights to the ownership of the said Pipestone Reserva- 
tion and the same shall thereafter be solely the property of 
the Yankton tribe of Sioux Indians, including the fee to the 
land." 

XIII. 

The Secretary of the Interior did not, within one year 
from August 15, 1894, the date of the ratification of said 
treaty by Congress, refer the question of the ownership of 



71 

the said Pipestone Reservation to the Supreme Court as pro- 
vided by Article 16 of said treaty, and in a letter dated 
August 16, 1895, the first day after the required year had 
elapsed, a number of the leading men of the Yankton tribe 
in a letter referred to the Indian Office by their Agent asked 
to be informed by official and authenticated letter that the 
Pipestone Reservation was now without the possibility of a 
contest the property of the Indians of said tribe, as provided 
in Article 16 of said treaty. (H. R. Doc. No. 535, p. 32, 
56th, Cong., 1st, Sess. ; Rec. p. 18). No reply was made to 
the request of said Indians and no further action taken by 
the Government in reference to the Pipestone Reservation 
until by the Indian Appropriation Act of June 7, 1897, (30 
Stat. L., 87), the Secretary of the Interior v/as directed to 
negotiate with the Yankton tribe of Indians for the purchase 
of the Pipestone Reservation. (Rec. p. 18) . 

XIV. 

Under the Act of 1897 just referred to, the Secretary of 
Interior directed an Indian Inspector James McLaughlin to 
negotitate with the Yankton Sioux Indians for the purchase 
of the Pipestone Reservation, who concluded an agreement 
with said Indians to purchase said Reservation for the sum 
of $100,000.00. This agreement was transmitted to Con- 
gress for ratification by the Indian Department March 24, 
1900, together with the report, agreement and council pro- 
ceedings, but no action was taken thereon by Congress, 
(Rec. p. 18.) 

XV. 

That by the Indian Appropriation bill of 1910, approved 
April 4, 1910, (36 Stat. L. 269) it is provided that jurisdic- 
tion be, and hereby is, conferred upon the Court of Claims 
of the United States to hear and report a finding of fact as 
between the United States and the Yankton tribe of Indians 
of South Dakota, as to the interest, title, ownership and 



72 

right of possession of said tribe of Indians in and to the 
Pipestone Reservation. 

From the above and foregoing findings of fact, the 
claimants request the following : 

CONCLUSION OF LAW. 

That the Yankton tribe of Sioux Indians of South Da- 
kota are the absolute owners in fee simple of the Pipestone 
Reservation, more particularly described in paragraph No. 
two of the Findings of Fact herein, and were such owners 
by fee simple title at the time this matter was submitted to 
the Court of Claims. 

STATEMENT AND ARGUMENT. 

This is a proceeding by the Yankton Sioux Indians of 
South Dakota under an Act of Congress approved April 4, 
1910 (36 Stat. L. 269, Indian Appropriation Act) , by which, 
under Section 22, the Court of Claims of the United States 
is given jurisdiction to hear and report a finding of fact 
as between the United States and the Yankton tribe of In- 
dians of South Dalfota as to the interest, title, ownership, 
and right of possession of said tribe of Indians in and to the 
following lands and premises, to-wit: The said lands being 
commonly known as the Pipestone Reservation and des- 
cribed and indicated by the township plat of the Govern- 
ment legal survey approved August 15, 1872 by the Sur- 
veyor General of the state of Minnesota as lying and being 
in Sections 1 and 2, of Township 106 North, Range 46 West, 
and Sections 35 and 36 of Township 107 North, Range 46 
West of the Fifth Principal Meridian, Minnesota, containing 
648.40 acres more or less, and embracing the quarries of the 
well know "red Pipestone;" action to be commenced by a 
petition in the name of said Yankton tribe of Indians, veri- 
fied by the attorney for said Indians; the proceedings in all 
respects to be conducted without expense to the Indians, and 



73 

the United States, through the Secretary of the Interior to 
furnish to said Indians a competent attorney to represent 
them in said proceedings. 

This being a proceeding on the part of the Yankton 
Sioux Indians against the United States it constantly must 
be borne in mind that the negotiations for the treaties and 
proceedings in connection therewith were conducted on be- 
half of the United States, an enlightened and pov/erful na- 
tion, by representatives skilled in diplomacy, masters of a 
written language, understanding the modes and forms of 
creating the various technical estates known to their law, 
and assisted by an interpreter employed by themselves ; that 
the treaties and proceedings have been drawn by them and 
in their own language ; that the Indians, on the other hand, 
are a weak and dependent people who have no written 
language and are or were at the time of these treaties, 
wholly unfamiliar with all forms of legal expression, and 
Vv'hose only knowledge of the terms in which the treaties and 
proceedings v/ere framed was that imparted to them by the 
interpreter employed by the United States; and that the 
treaties and proceedings must therefore be construed, not 
according to the technical meaning of their words to learned 
lawyers, but in the sense in which they would naturally be 
understood by the Indians. Jones vs. Meehan, 175 U. S. 1, 
44 L. Ed. 49, and cases there cited. 

Chief Justice Marshall, speaking of Article IV of the 
treaty of Hopewell, of November 28, 1875, betw^een the 
United States and the Cherokee Indians, which defined the 
boundary allotted to the Cherokees for their hunting 
grounds between the Indians and the citizens of the United 
States, (7 Stat. L. 19) said : "There is the more reason for 
supposing that the Cherokee chiefs were not very critical 
judges of the language, from the fact that every one makes 
his mark; no chief was capable of signing his name. It is 
probable the treaty was intei-preted to them." 

"Is it reasonable to suppose that the Indians, who could 
not v/rite, and most probably could not read, v>'ho certainly 



74 

were not critical judges of our language, should distinguish 
the word 'allotted' from the words 'marked out ?' " 6 Peters 
551, 552, 8 L. Ed. 497, 498, and Mr. Justice McLean, concur- 
ring, said : "The language used in treaties with the Indians 
should never be construed to their prejudice. If words be 
made use of which are susceptible of a more extended mean- 
ing than their plain import as connected with the tenor of 
the treaty they should be considered as used only in the 
latter sense." 6 Peters 582, 8 L. Ed. 508. 

The same Justice further says : "How the words of the 
treaty were understood by those unlettered people, rather 
than their critical meaning should form the rule of con- 
struction." In the case of U. S. v. Kagama, 118 U. S. 375, 
30 L. Ed. 228, the Indian tribes in this country are spoken 
of as wards of the nation, communities dependent for their 
food and their political rights, as well as their protection on 
the United States and in the case of Choctaw Nation v. 
United States, 119 U. S. 1, 30 L. Ed. 306, it was said that 
the relation between the United States and the Indian tribes 
was that of superior and inferior, and that the rules to be 
applied in the case then before the court, were those that 
govern public treaties, which even in case of controversies 
between nations equally independent were not to be inter- 
preted as rigidly as documents between private persons 
governed by a system of technical law, but in the light of 
the larger reason and the superior justice that constitute 
the spirit of the law of nations. 

With this rule of law in mind we approach the argu- 
ment of this case. The first treaty relating to the Pipestone 
Reservation, between the United States and the Yankton 
Sioux Indians was negotiated in 1858 and confirmed on the 
16, day of February, 1859, (11 Stat. L., 743), and the part 
now to be construed, taken with all other parts of the 
treaty, reads as follows: "Section 8. The said Yankton 
Indians shall be secured in the free and unrestricted use of 
the red Pipestone quarry, or so much as they have been ac- 
customed to frequent and use for the purpose of procuring 



75 

stone for pipes ; and the United States hereby stipulate and 
agree to cause to be surveyed and marked out so much 
thereof as shall be necessary and proper for that purpose, 
and retain the same and keep it open and free to the Indians 
to visit and procure stone for pipes so long- as they shall 
desire." 

In 1851 a treaty had been made at Traverse des Sioux 
with the Sisseton and Wahpeton Indians (10 Stat. L. 949), 
by which treaty those Indians relinquished to the United 
States land in the Territory of Minnesota lying east of a 
line defined in said treaty; and following that treaty the 
Yankton Sioux Indians charged the Sisseton and Wahpeton 
Indians with attempting to cede to the United States lands 
belonging to the Yankton Sioux Indians and particularly 
the "Pipestone quarries," (Rec. pp. 12, 44, Ind. Com'r Rept. 
1857, pp. 52, 59, 83, 84, 106). The Pipestone Reservation 
was well within the country which had been prior to 1851 
the hunting ground of the Yankton Sioux Indians and 
which they claimed as their land. (Rec. pp. 44, 45, 47, 48, 
49, 51, Ind. Com'r Rept. 1857, pp. 83, 84, 106). Immediate- 
ly after the treaty of Traverse des Sioux, the Yankton Sioux 
Indians because of the attempted sale of the Pipestone 
quarry by the Sissetons and Wahpetons, made it a practice 
at all times and in every way open to them, to insist that the 
treaty was an attempt by the latter Indians to cede property 
which they did not own, and annually, at the payments made 
to the Sisseton and Wahpeton Indians, attended such pay- 
ments and demanded a share in the money paid to the 
Sissetons and Wahpetons for said lands, on the ground that 
it was payment for lands owned by the Yankton Sioux In- 
dians (Rec. p. 14, Ind Com'r Rept. 1857, p. 59). So per- 
sistent were the Yankton Sioux Indians that in 1858 a meet- 
ing was had with them, at Washington, for the purpose 
of rectifying their complaint that the United States had 
attempted to purchase from the Sissetons and Wahpetons 
lands which belonged to the Yanktons, which negotiations 



76 

resulted in the treaty of April 1868 (11 Stat. L. 473) Rec. 
p. 15). 

The above references establish that the Yankton Sioux 
Indians had, ever since the making of the treaty of 1851 
with the Sisseton and Wahpeton Indians, (10 Stat. L., 949), 
claimed the title to this Pipestone quai-ry, and that the 
Sissetons and Wahpetons had attempted to cede these lands 
to the United States without having any authority so to do, 
and that the Yankton Indians had at all times been present 
whenever annuities were paid to the Sisseton and Wahpeton 
Indians, and made demand for a portion thereof for the 
reason that they owned the Pipestone quarry, and that their 
persistence in this course was such that finally a treaty was 
entered into by the United States and the Yankton Sioux 
Indians, with the view of rectifying their complaint, which 
treaty was made and entered into in 1858 and confirmed by 
the United States in 1859. (11 Stat. L., 743) . 

The question then is, what title, if any, did the Yankton 
Sioux Indians have to the Pipestone quarry at the time 
when this treaty of 1858 was made, and what title did they 
have after it had been ratified by the United States? As 
heretofore stated, the Yankton Sioux Indians claimed at 
the time of this treaty, that they owned the Pipestone 
quarry, and that the Sissetons and Wahpetons had attemp- 
ted to cede the same to the United States without having 
any authority so to do. After the treaty of 1858-9, the 
Yanktons had the same title that they had before, together 
with that which was granted to them by that treaty. It is 
clear that by that treaty they did not cede the Pipestone 
quarry to the United States, and after the treaty, and in 
1859 the United States caused the same to be surveyed, 
marked and platted as the lands referred to in Article VIII 
of said treaty, and copies of the plats and field notes were 
transmitted by the Indian Ofi'ice to the General Land Office 
with the request that the exterior boundaries "be respected 
upon the books" of that office. 

As to what was claimed by the Indians prior to the 



77 

making- of the treaty of 1858, see report of Superintendent 
Cullen to Commissioner of Indian Affairs, Ind. Com'r Rept., 
1857, p. 52; also report of Charles E. Flandreau to Commis- 
sioner of Indian Affairs, Ind. Com'r. Rept., 1857, p. 59 ; also 
report of Superintendent Cullen to Commissioner of Indian 
Affairs, 1857, pages 83 and 84, also page 106 ; see also report 
of date October 15, 1857. 

The first of these reports last above referred to, reads 
as follows : 

"The Yankton Sioux who occupy the country to the 
north of the Big Sioux River and west of the present Sioux 
Reserve, ai'e anxious to sell their lands to the Government 
and make a treaty. I would recommend that steps be taken 
as early as practicable in the spring, to make this treaty, as 
their lands lie in the territory which, at the next session of 
Congress, will probably receive a separate organization ; and 
as the southern portion now open for settlement will receive 
the immigration which is already tending toward the furth- 
er west, it would be advisable for the safety and peace of 
the settlers in this new country that these Indians should 
be satisfied and retained in subjection. These Indians are 
the ones who interfere annually with the payments at the 
upper Sioux Agency, under the pretense of the claim that 
they make, already referred to, against the Sissetons, and 
besides, they are exceedingly averse to any whites ever 
crossing their lands until some treaty is made with them. 
They number 450 lodges besides about 200 lodges of what 
are known as the Cut-Head Yanctonais, and cover a vast 
expanse of country, and the valleys of several large streams, 
the principal one being the James River, which empties into 
the Missouri and is represented as navigable for a consider- 
able distance from the mouth. The great Pipestone quarry, 
"The Indian Mecca," which, by the treaty of 1851, is within 
the limits of the ceded land, seems to be the source of great 
misunderstanding among all these Indians, and some pro- 
vision should be made by the Government to remove from 
sale or preemption this spot, which for generations they 



78 

have held sacred for the purpose which the name indicates, 
and as the material is in universal use among them for 
manufacturing their pipes, they consider it more valuable 
than all the lands they possess." 

The next reads as follows, and is made, as the court 
will notice, by Charles E. Flandreau: 

"It will be absolutely necessary that some measures 
shall be taken to prevent the Yanctons from interfering in 
the payments of the Sisseton and Wahpeton. The reason of 
their coming to these payments, and the ground of their 
claim, is as follows : When the treaty of Traverse des Sioux 
was made, (10 Stat. L. 949), the Sissetons and Wahpetons 
were called upon to sell certain lands, which they admitted 
did not belong to them, and declined selling, and were told 
that they were only to sell their Hoht in the lands. This 
they consented to. These lands belonged to the Yanctons, 
or they had some claim on them, and the lands are now re- 
garded as ceded lands, and the Yanctons claim a right to a 
share in the annuities, and every payment that has been 
made has been protracted and disturbed by the presence of 
these Indians. I recommend that a treaty be made with 
them for the purchase of their lands west of the Big Sioux 
River, and their being placed on a Reservation or removed 
north and west. The country west of the Big Sioux will 
soon be demanded for the whites for settlement, and the 
sooner it is purchased the less trouble the whites will have 
to get rid of the Indians and take possession of it. I re- 
gard it as necessary to the prosperity of our Indians that 
the influence of these Yanctons shall be withdrawn from 
them ; and the best way to do it is to put the Yanctons .under 
annuities and settle the difficulties that exist between 
them." 

Report of Charles E. Flandreau, September 24, 1857, 
page 59, Ind. Com'r. Report, 1857. This is the same famous 
Charles E. Flandreau who at the making of the treaty in 
1858-9 was present and assisted in making this treaty. Is 



79 

it possible that he did not know what the Indians' rights 
were ? He was at that time an Indian Agent. 

We quote one further citation: "I have just received 
reliable information that the Yanctons have driven all the 
settlers from the neighborhood east of Big Sioux River." 
(The Court will notice that he uses the words 'east of the 
Big Sioux River' here because the Pipestone quarry is east 
of the river.) "I am apprehensive of some trouble with 
them as they are represented to be in a destitute condition. 
I would further state they have requested the recall of Cap- 
tain Noble's party, who were engaged in building the North- 
ern Pacific Railroad. I will here state in this connection 
that in a council with som.e of the Yanctons, those who came 
to Yellow Medicine anticipating the payment, and exact con- 
tribution they make of the Sissetons; on the 19, inst., they 
expressed themselves favorable to making a treaty. I told 
them I would report their feelings. I am of the opinion it 
will be necessary to adjust the matters of difference between 
the Yanctons and Sissetons. The Yanctons claiming that 
the latter have, in the treaty of 1851, sold the lands belong- 
ing to the former, and particularly claiming the "Pipestone 
quaiTies;" and as these matters should be adjusted so as to 
prevent future troubles at subsequent payments, I would 
here call your attention to this subject." Report of W. J. 
Cullen, Superintendent, Ind. Com'r. Report, 1857, pages 83 
and 84. Also page 106. 

Further light is throv/n upon what was claimed at the 
treaty of 1858, and the terms that were made by the Yank- 
ton Indians, and their understanding of that treaty, by the 
negotiations for the treaty made with the same Indians in 
1892 and ratified in 1894, (28 Stat. L. 315). The report of 
the Commission appointed to treat with the Yankton In- 
dians is found in Senate Ex. Document No. 27, 53d Cong., 
2nd Session, in which report at page 10 the commission says 
that Henry Selwyn, an Indian, said as follows: "Until all 
things are carried out and straightened up this land (sur- 
plus lands of Indians) should not be sold." 



80 

Peter St. Pierre at the same place says: "It has been 
said that we had no right to the Pipestone Reservation. In 
the treaty of 1858 this Pipestone Reservation was made a 
condition of the treaty and was not signed until the Govern- 
ment bought back and gave it to us who owned it." 

At the same page Henry Selwyn says : "When the com- 
mission was sent out to negotiate in 1858, Struck-by-the- 
Rees refused to sign the treaty to sell the land until the 
Pipestone quarry was returned to the tribe. When the 
Government promised to give this back to the Indians, 
Struck-by-the-Rees then signed the treaty, so that the basis 
on which this treaty of 1858 was made was the return of 
the Pipestone quarry." 

In the same commission report, page 20, Senate Ex. 
Doc, 27, 53d Congress, 2nd Session, the commission makes 
the following statement: "The red Pipestone quarry was 
made the sine qua non of the treaty of 1858. Until this v/as 
assured to him, Struck-by-the-Rees would not sign the 
treaty. Since that time this possession of the Yankton In- 
dians has been a fruitful source of trouble to them, because 
of the encroachments and depredations of white men, and 
other Indians, and now that their right to that possession is 
questioned by the Government, it fills them with a feeling 
akin to awe and consternation. Without evidence to that ef- 
fect, it would not be thought that it was originally the in- 
tention of the Government to draw the line at the use of the 
quarries by the Indians, retaining the fee to the lands in the 
United States." At page 25 of this same report is found the 
following, puiTporting to be a statement by one Jandran, an 
Indian : "We asked Jandran if he wanted to hear the agree- 
ment read, and he said 'No, I am no child, I have heard the 
treaty and I understand it. I am ready to sign, and \ want 
to tell you why I sign and I want you to write it down. I 
sign the treaty because it contains the article about the 
Pipestone Reservation, the whiskey clause, and the clause 
for the care of the poor, for schools,' etc." See also further 
proceedings of the Commission to treat with the Indians, 



81 

found also in Senate Ex. Doc. No. 27, p. 55, 53d Cong., 2nd 
Session, where Henry Selwyn says as follows: "I want to 
speak of the Pipestone Reservation. By the treaty of 1858 
it seems that the present Pipestone Reservation was sold to 
the Government by the Santees. Before the Santees made 
this sale we owned the Pipestone quarry, and the Santee 
virtually stole it and sold it. When the commission was sent 
out to negotiate in 1858, Struck-by-the-Rees refused to sign 
the treaty to sell the land until the Pipestone quarry was 
returned to the Yankton tribe. When the Government pro- 
mised to give this back to the Yanktons, Struck-by-the-Rees 
then signed the treaty." 

So counsel for the Indians claim that the giving to the 
Indians by the treaty of 1858 of the Pipestone Reservation 
was the basis upon which the treaty was made, and Mr. 
Selwyn at the same place says further: "So the basis on 
which the treaty of 1858 was made was a return of the 
Pipestone quarry. The United States bought back this land 
and gave it back to the Indians. It was said at this time 
that this should belong to us, generation after generation, 
even should it descend to one man. This has been violated. 
We heard that a railway was to run across the Pipestone 
Reservation, but we thought the land being our own, they 
would consult us before it was done ; but instead of coming 
to us they went on to Washington and there got a law pass- 
ed authorizing this railroad to cross the Reservation for a 
certain amount of money. After this we heard that a school 
building was to be built there. This was done in the same 
manner. There was also two white men living on this 
agency, both have claims and are paying taxes. I have 
been at Pipestone and have talked with the Santees there, 
and they claim that the Pipestone quarry belongs to them. 
We have lost so much of our land, and I am afraid the 
Santees will get possession of this." 

At page 58 of Senate Ex. Doc. No. 27 above referred to, 
being also a part of the report of the commission that 
negotiated the treaty with the Yankton Indians, Jandran 



82 

says as follows : "We all know that the people gathered here 
are poor. Whenever I have occasion to speak to young men 
gathered here I generally advise them to go and start on 
lands and farm. I have a few words to say, I will refer to 
those lands Mr. William Bean spoke of in Iowa and to those 
unceded lands, and then to the Pipestone Reservation. All 
these claims should be settled first, before the commission- 
ers negotiate for these lands." At the same time and place, 
in said Document No. 27, page 61, being a part of the report 
of the commission that negotiated the treaty of 1892, Robert 
Clarkson says as follows : "This Pipestone quarry was ours ; 
the President built a railway across it without our consent. 
They had a chance to do it was the reason why they did it." 

For copy of the treaty of 1892-4, between the United 
States and the Yankton Sioux Indians, see Sen. Ex. Doc. No. 
27, 53d Cong., 2nd Session, pages 26-30 inclusive. As bear- 
ing further upon the basis upon which these two treaties, 
that of 1858 and 1892-4 were made, see report to the Interior 
Department, made by James McL<aughlin under direction of 
the Secretary of the Interior, March 15, 1912, at pages Rec. 
12, 13 and the first eight lines of page 14. Also see letter 
of Superintendent Cullen to the Indian Office v/ritten from 
the Lower Sioux Agency, July 26, 1857, Rec. p. 14, and 
referred to by James McLaughlin ; also other letters referred 
to by him on the same page, down to the words, "the follow- 
ing year, 1858." Rec. p. 15. 

We refer to that part of Rec. p. 16 commencing with 
the words, "that Article 8 providing for the survey of the 
quarry was carried out, would appear from report of Agent 
A. H. Redfield, Superintendent of the Central Superintend- 
ency in October, 1859, namely, the celebrated red Pipestone 
quarry, a portion of which was reserved by the Yanktons 
in their treaty, has been surveyed and marked by Messrs. 
Hutton and Snow the past summer. (Ind. Com. Rpt. 1859, 
p. 128). 

We also offer in evidence so much of Rec. p. 16 as reads 
as follows : "Six years after this the matter came again to 



83 

the surface, this time incidentally. In 1894 the. Department 
transmitted to Congress a letter of the Indian Office dated 
December 9, 1893, accompanied by the report of the Yank- 
ton Indian Commission, an agreement made with those In- 
dians December 21, 1892, for the sale of their surplus lands." 
And the following- at the top of Rec. p. 17, (Sen. Ex. Doc. No. 
27, 53d Con., 2nd Session) : "In its report to the Indian Of- 
fice March 31, 1893, the Commission said (page 15) : 'By 
the treaty of 1858 the Yankton Indians ceded to the United 
States their claim to all lands excepting their reservation of 
400,000 acres and the red Pipestone quarry.' " 

We also offer in evidence so much of Rec. p. 17 as fol- 
lows : "I want to speak of the Pipestone Reservation" and 
ends with "(P. 55)." 

We also offer so much of Rec. p. 18 of said Report in 
evidence as reads as follows: "The Indian Appropriation 
Act of June 7, 1897, contained the following clause (30 Stat. 
L. 87). The Secretary of the Interior is directed to negotiate 
through an Indian inspector with the Yankton tribe of 
Indians of South Dakota for the purchase of a parcel of 
land near Pipestone, Minnesota, on which is now located an 
Indian Industrial School. The Indian school referred to was 
established on the reservation under Section 2 of the Act of 
February 16, 1891 (26 Stat. L. 764). It should be remarked 
that the Yanktons applied for compensation for this appro- 
priation of their land, but the Assistant Attorney General, 
on September 17, 1891, rendered an opinion that the Indians 
were not entitled to such compensation for the reason that 
their rights to quarry stone were not infringed upon and 
that they would not suffer any damage from the construc- 
tion of the school buildings." (Ind. Com. Rpt. 1892, p. 60.) 

We also refer to that part of Rec. p. 18, as reads as fol- 
lows: "Under the Act of 1897 just referred to, I was ap- 
pointed to negotiate with the Indians, which I did, and re- 
ported from Yankton Agency, South Dakota, October 9, 1899, 
transmitting an agreement and the proceedings of council." 
And on this occasion we desire to call attention to the words 



84 

of Inspector McLaughlin above named, when engaged in 
negotiating with the Yankton Indians for the purchase of 
this very Pipestone Reservation when talking to the Indians 
in regard to the same, at page 17 of Doc. No. 535, House 
of Rep., 56th Cong., First Session : "It is hardly necessary 
to explain to you how you come to be the owners of this land 
(Pipestone Reservation) in fee simple, it was put in your 
treaty of December, 1892, which was approved in May, 
1894. The title in that tract is therefore in you. In order 
to enable the Government to have control of that tract and 
care for it thoroughly and keep it up as a national park, I am 
here to see if you care to sell it. June 7, 1897, Congress in- 
serted in the Appropriation Act a clause requiring the Sec- 
retary of the Interior to negotiate with you for that tract." 
See also the same document, page 9, where Inspector Mc- 
Laughlin says in regard to this as follows: "This visit of 
mine here is under authority of an Act of Congress which 
became a law June, 1897, which authorized the Secretary of 
the Interior to send out an inspector to negotiate for this 
Pipestone section of land. That paragraph of the law which 
refers to the land is as follows: (Reads also a portion of 
his instructions from the Department.) As one of the 
speakers said. The Yankton Indians own that quarry. While 
it is true that the other Sioux Indians claim part of that 
quarry, the Yanktons are the only ones that are recognized 
as having any interest in that reservation, the Yanktons 
alone being mentioned regarding it in any negotiations be- 
tween the Government and the Indians. * * * I wish to 
have you understand, however, that I do not consider that 
any other Indians have any claim to it, for this reason, that 
they are not mentioned in any of the treaties about it. When 
your people made the treaty forty-one years ago they very 
prudently and wisely provided for the visiting and taking 
stone from that quarry, and so they are the only ones men- 
tioned as having any right to the land. Then, in your later 
agreement of 1892, there was placed an amendment recogniz- 
ing your right to that quarry. A few years later there was 



85 

an item in the appropriation act which fixed the title 
absolutely in you, and that is why I am here today, to 
negotiate for that land or a portion of it." 

I have sought by the above and foregoing to show the 
evidence, or a portion of it, upon which the claimants rely 
in this case, to prove that long before the treaty of 1858-9 
there was a claim made by these Yankton Indians to be 
the owners of the Red Pipestone quarry or Pipestone Res- 
ervation. With this in view the Indians came to the meet- 
ing of the parties who negotiated this treaty in Washing- 
ton. The treaty was made and is to be construed under the 
law as stated at the outset of this argument. That the 
Indians understood this treaty of 1858-9 to give them the 
absolute title to this land there can be no question, first, for 
the reason that they made it a condition precedent to enter- 
ing into any treaty; second, that they believed that the 
treaty gave them the absolute title, until the United States 
Government without consulting them, in or about the year, 
1891, authorized a railroad company to build its right of way 
across said Reservation, and took the money for the same 
without consulting the Indians and without at first paying 
them any part thereof, but afterwards paid to them the 
v/hole of the sum so received, thus giving a construction, as 
we claim, to this treaty, the same as that claimed by the 
Indians, in that they paid them the money for this right of 
way. 

The United States further construed its treaties with 
the Yankton Indians to give them the absolute ownership 
of the Pipestone Reservation by directing the Secretary of 
the Interior to negotiate with them for the purchase thereof 
(30 Stat. L. p. 87) . Inspector McLaughlin went before the 
Indians and stated to them that they were the owners of 
this land and that the Government had sent him there to 
negotiate a purchase of the same, and he did negotiate a 
purchase thereof, and entered into an agreement with the 
Indians by which they agreed to sell this Pipestone Reserva- 
tion to the United States Government for the sum of $100,- 



86 

000. Thus we claim that both parties have by their acts 
construed this treaty to mean that the Indians supposed it 
to mean at the time they made the treaty of 1858-9. Con- 
struing this treaty, then, in the hght of the way it has been 
treated by and between the Government and these Indians, 
and in the light of the rule of construction in the first part 
of this brief referred to, in view of the fact that the Govern- 
ment stands in the relation of guardian to these Indians, and 
the language itself, and bearing in mind the further fact that 
the Indians have never claimed to cede, nor has the Govern- 
ment claimed that they did cede, any portion of this Reser- 
vation to the Government, but have always claimed it and 
still claim it as their own, does it not appear that these In- 
dians own the title in fee of these lands ? 

In speaking of this, we are not unaware of the language 
used in other cases wherein the United States Suprem.e 
Court says that in the final analysis the United States are 
the owners of all the land and the Indians only owners of a 
possessory right. If this is true, is it not also true that 
these Indians are flie owners of all the rights that they ever 
had in said Pipestone Reservation, and, in addition to the 
same, are the owners of whatever right was given to them 
by the treaty of 1858-9 ? 

We would call the attention of the Court to the case of 
Jones vs. Meehan, decided by the United States Supreme 
Court, in the 175, U. S., at page 1, (44, L. Ed., page 49), 
where the Supreme Court in construing what, under treaties, 
would constitute as between the Indians and the United 
States a transfer of a fee simple title to lands, and in which 
they say it is almost wholly a matter of intent of the parties, 
— in other words, how the parties themselves understood it, 
with a strong presumption in favor of the Indians by reason 
of their dependent condition. 

As we understand the language used by the Supreme 
Court in the above case, a fee simple title is created, as be- 
tween the United States and the Indians, by any language 
which vv'ould naturally be so understood by the Indians. 



87 

While the language used in the treaty of 1858-9 is not, per- 
haps the most appropriate that might be chosen to transfer 
title, was not the intent and effect of this language as used 
in the treaty and the acts following, sufficient to transfer 
such title? First, the language in the treaty says: "The 
Yankton Indians shall be secured in the free and unrestrict- 
ed use of the red Pipestone quarry, or so much thereof as 
they have been accustomed to frequent and use for the 
purpose of procuring stone for pipes ; and the United States 
hereby stipulates and agrees to cause to be surveyed and 
marked so much thereof as shall be necessary and proper for 
that pui-pose," etc. The Indians at that time already had or 
claimed to have title to these lands. This is guaranteed to 
them by the Government so long as they shall desire. Noth- 
ing is said as to any return of this title in any way. 

Again, when the United States sold a right of way over 
this reservation they gave to the Indians the money re- 
ceived for the same. 

Again, the treaty of 1892-4 (28 Stat. L. 315) provides: 
"If the Government of the United States questions the ov/n- 
ership of the Pipestone Reservation, the Secretary of the In- 
terior shall as speedily as possible refer the matter to the 
Supreme Court of the United States to be decided by that 
Court." 

Again, they sent Mr. McL^aughlin, Indian Inspector, to 
negotiate with the Indians for a purchase of this land, and 
he made an agreement with them for a sale of the land, for 
which the Government was to pay $100,000. 

It seems to us, then, that taking all these facts together, 
there is title in fee simple in the Indians. At least, since 
the treaty of 1858-9 these lands have been so treated both 
by the Indians and by the United States; but if we are 
wrong in this the Indians at least have the same title now 
that they did at the time of the treaty of 1858-9, with the 
added title of the treaty of 1892-4. 

As I understand the Act of Congress by which this mat- 
ter was submitted to this Court, this Court is merely to re- 



88 

port a finding of fact as betv/een the United States and the 
Yankton tribe of Indians of South Dakota, as to the interest, 
title, ownership, and right of possession of said tribe. We 
claim, then, a title in fee under the treaty of 1858-9, but if 
we are not entitled to that, we are at least entitled to the 
right of exclusive possession, and a further right given us 
by the treaty of 1892-4. What then, is the effect of the 
treaty of 1892-4? 

Section 16 of the treaty of 1892-4 reads as follows : 
"If the Government of the United States questions the 
ownership of the Pipestone Reservation by the Yankton 
tribe of Sioux Indians under the treaty of April 19, 1858, 
including the fee to the land as well as the right to work 
the quarries, the Secretary of the Interior shall as speedily 
as possible refer the matter to the Supreme Court of the 
United States, to be decided by that tribunal, and the United 
States shall furnish, without cost to the Indians, at least one 
competent attorney to represent tlie interests of the tribe 
before the court. If the Secretary of the Interior shall not, 
within one year after the ratification of this agreement by 
Congress, refer the question of the ownership of the said 
Pipestone Reservation to the Supreme Court, as provided 
for above, such failure upon his part shall be construed as 
and shall be a waiver of the United States of all rights to 
the ownership of the said Pipestone Reservation, and the 
same shall thereby be solely the property of the Yankton 
tribe of Sioux Indians, including the fee to the land." 

The above clause constituting a part of the treaty was 
of course confirmed by the Senate of the United States, to- 
gether with the other clauses of the treaty, and v/as a part 
of the consideration of the treaty, and, as Vv'e claim, a part 
without which the Yankton Sioux Indians would never have 
entered into the treaty at all. We claim, therefore, regard- 
less of what title the Indians received through and by virtue 
of the treaty of 1858-9, the ratification of this treaty was in 
itself sufficient to convey to the Indians a fee simple title to 
the Pipestone Reservation. It was a part of the contract to 



89 

be fulfilled on the part of the United States, voluntarily en- 
tered into by the agents of the United States under proper 
authority and duly ratified by the Senate of the United 
States. The Indians, then, have performed the whole of 
their contract. Can it now be said that the United States 
shall not be compelled to perform its part of the contract? 
The treaty cannot be rescinded by either of the parties at 
this late date, not can the United States return to the In- 
dians in connection what the United States received, as the 
lands ceded by the Indians in connection with this treaty 
have already been opened to settlement and sold by the 
United States. 

The Indians have at all times and in every way that has 
been open to them, since the treaty of 1858-9, insisted upon 
the fact that the title was confirmed to them by the treaty 
of 1858-9, and if not by that treaty at least by the treaty of 
1892-4, and that the title to this Reservation was in the In- 
dians has been recognized in every way, not only by the 
officers of the Interior Department of the United States but 
has been ratified by the Senate of the United States, as we 
claim. That the treaty of 1858-9 was a valid one was recog- 
nized by the United States Court in case of the United 
States V. Carpenter, 111 U. S. Rep. 347, and the Indian De- 
partment of the United States recognized this title as being 
in the Indians, by payment to them of the money received 
for right of way from railway company, by sending to them 
James McLaughlin, an Inspector of the United States, to 
make a treaty for the purchase of said lands, and an agree- 
ment was entered into by said James McLaughlin on the 
part of the United States and by the Indians by which the 
Government agreed to pay the Indians $100,000 for this 
Reservation. Can it be said now that the Government shall 
not perform its part of the agreement? 

Both the treaties of 1858-9 and 1892-4 have been rati- 
fied by the Senate of the United States. These contracts 
then were complete. We do not at this time argue the ques- 
tion of whether or not it was possible to have submitted the 



90 

question of the title of the Indians to the United States Su- 
preme Court, but we see no reason why, by the consent of 
both parties, this might not have been submitted to that 
Court. It, however, was not done, and, as we claim, it can 
not now be successfully argued that this part of the con- 
tract which was regarded by the Indians as an indispensable 
part, without which they would not have entered into the 
treaty, which was confirmed by the Senate of the United 
States, is not binding upon the United States, and we con- 
fidently assert that the fee simple title to the Pipestone 
quarry is in the Indians. 

There is no claim of any fraud or wrongdoing on the 
part of the Indians in the making of this treaty, and there 
can be no argument that the Senate of the United States did 
not understand the temis of that treaty. It was made 
with full knowledge then on the part of both parties of what 
the treaty contained. The parties to this treaty were the 
United States, a great and powerful nation, with its agents 
well understanding the language and well understanding 
what they put into the treaty, the treaty was confirmed by 
the greatest legislative body in the world ; and on the other 
hand were the Indians, few of whom at that time could read 
the English language at all, and all of whom needed an in- 
terpreter, who was usually furnished by the United States, 
and we say, therefore, that the United States is now estop- 
ped from claiming that the terms of this treaty should not 
be fulfilled on its part, and we ask that the title in fee 
simple claimed by the Indians be guaranteed to them by 
the findings of this Court. 

Respectfully submitted, 

L. B. FRENCH, 
Attorney for the Yankton Sioux Indians. 



91 

INDEX 



Page 

Abraham, Eli, Deposition of 27 

Argument, Claimants' 72 

Brown, Joseph R., Deposition of 41 

Bull, Moses Standing, Deposition of 49 

Bull, Iron, Deposition of 51 

Claimants' Findings of Fact 65 

Claimants' Argument 72 

Depositions of : 

Eli Abraham 27 

Napoleon Wabashaw 29 

Thomas Whipple 30 

Thomas K. West 32 

Joseph P. Killers 34 

John Eastman 36 

Thomas A. Robertson 38 

Joseph R. Brown 41 

Red Horse 43 

Matthew Leeds 46 

Sunrise 48 

Moses Standing Bull 49 

Iron Bull 51 

Eastman, John, Deposition of 36 

Findings of Fact, Claimants' 65 

General Traverse IOV2 

Killers, Joseph P., Deposition of 34 

Horse, Red, Deposition of 43 

Interior Department, Report of 11 

Interior Department, Reply for Claimants 53 



92 

Leeds, Matthew, Deposition of 46 

Petition of Claimants 1 

Report of Interior Department 11 

Robertson, Thomas A., Deposition of 38 

Reply of Interior Department for Claimants 53 

Sunrise, Deposition of 48 

Wabashaw, Napoleon, Deposition of 29 

Whipple, Thomas, Deposition of 30 

West, Thomas K., Deposition of 32 

Documents : 

Ind. Com'r Report, 1857. 

H. R. Doc. No. 535, 56th Con., 1st Sess. 

Sen. Ex. Doc. No. 27, 53rd Cong-., 2nd Sess. 



No. 31253. 



The Yankton^ Sioux Ikdiaj^s 

V. 

The United States. 



WG 211917 

DEFENDANTS' OBJECTIONS TO PLAINTIFFS' REQUEST FOR 
FINDINGS OF FACT AND BRIEF. 



GEO. M. ANDERSON, 

Attorney for Defendants. 



WASHINGTON : GOVERNMENT PRINTING OFFICE : 1917 



:ix^ 






INDEX. 

Page. 

Defendants' objections to plaintiffs' request for 

findings of fact 93 

Conclusion 105 

Brief lOG 

Statement : 

Location of Pipestone Quarry 106 

Sioux of Mississippi, owners of Pipestone Quarry 

by Indian title of occupancy lOG 

From time immemorial all northwestern tribes 
had the right to visit the quarry and take 

stones for pipes 118 

Cession of the Pipestone Quarry 125 

Yankton cession of 1858 136 

Survey of the Pipestone Quarry 138 

Yankton agreement of 1892 139 

Yankton agreement of 1899 141 

Argument: 

Indian title 142 

Interest of Yanktons in Pipestone Quarry under 

Article VIII of the treaty of 1 858 143 

What additional interest did the Yanktons ac- 
quire by the agreement of 1892 145 

Conclusion 148 

5811—17 1 I 



94 

fore requested to find in lieu thereof the fol- 
lowing : 

This suit Avas brought by the Yankton Tribe of 
Sioux Indians of Soutli Dakota in pursuance of a 
l>ro vision of the Indian api^ropriation act of April 
4, 1910 (36 Stat. 269, 284), which reads: 

That jurisdiction be, and hereby is, con- 
ferred upon the Court of Claims of the 
United States to hear and report a finding 
of fact, as between the United States and 
the Yankton Tribe of Indians of South Da- 
kota, as to the interest, title, ownership, 
and right of possession of said tribe of In- 
dians in and to the following lands and 
premises, to-wit: The said lands above de- 
scribed and indicated by the township plat 
of the Govermnent legal survey approved 
August 15, 1872, by the surveyor general 
for the State of Minnesota as lying in sec- 
tions 1 and 2 of township 106 north, range 
46 west, and sections 35 and 36 of township 
107 north, range 46 west of the fifth princi- 
pal meridian, containing 648.2 acres, more 
or less, and embracing the red pipestone 
quarries. Proceedings shall be connnenced 
by petition in the name of said Yankton 
Tribe of Indians, which petition shall be 
verified by the attorney or attorneys for 
said Indians. The proceedings shall in all 
respects be conducted without cost or ex- 
pense to said Indians, and the United 
States, through the Secretary of the Inte- 
rior, shall furnish without cost to said In- 
dians a comjietent attorney or attorneys to 



95 

appear for and represent them in said pro- 
ceedings, the attorneys' fee therefor to he 
fixed hy the Secretary of the Interior. 

II. 

The defendants ohject to the plaintiff's pro- 
posed finding No. II upon the ground that the 
statement made in the sixth and seventii lines that 
'' title thereto in fee is claimed hy said Yankton 
Sioux Indians " is improper in a finding, as the 
ownership of the quarry is a question of lav/ to he 
decided hy the court, and not a proper statement 
to be incorporated in the finding of fact. And 
there is a further objection that the location of the 
Pipestone Quarry has not been set out with suffix 
cient clearness to locate it at once on the map with 
reference to the testimony as to occupation. The 
court is therefore requested to ihid in lieu thereof 
the following: 

Tlie Red Pipestone Quarry is located in the 
southwest corner of Minnesota about 15 miles 
east of the Big Sioux River and about 7 miles east 
of the South Dakota line. It is situated in sec- 
tions 1 and 2 of township 106 north, range 16 west, 
and sections 35 and 36 of township 107 north, 
range 46 west of the fifth principal meridian, and 
contains 648.2 acres, more or less. (Rec, pp. 11, 
12, and 25.) 

III. 

The defendants object to the plaintiffs' pro- 
posed finding of fact No. Ill upon the ground, 

5811—17 2 



96 

first, that the facts as to the cession have not been 
accurately stated ; second, that there is no evidence 
that the Yankton Sioux charged the Sisseton and 
AYahpeton Indians with attempting to cede to the 
United States lands belonging to them, particu- 
larly the Pipestone Quarry. There are statements 
in official reports that the Yanktonais and Yankton 
Indians attempted to secure part of the annuities 
of the Sissetons after the treaty of July 23, 1851, 
but we have shown that the Indians referred to in 
all cases were really Yanktonais Indians. We ob- 
ject to the second statement for the further reason 
that the same facts have been set out in the plain- 
tiffs ' proposed findings No. Y. For proof of these 
facts see defendants' brief, post, pp. 125-136. 

The court is requested to find in lieu of the 
plaintiff's proposed finding No. Ill the following: 

The Sisseton and Wahpeton Bands of Missis- 
sippi Sioux by the treaty of July 23, 1858 (10 
Stat, 949), conmionly known as the treaty of 
Traverse des Sioux, ceded all of their lands in the 
State of Minnesota, including the Pipestone 
Quarry, to the United States, and the Medawakan- 
ton and Wahpakoota Bands of Mississippi Sioux 
by the treaty of August 5, 1851 (10 Stat. 954), 
known as the treat.y of Mendota, ceded the same 
lands which had been theretofore held in conmion 
b}^ the four bands of Mississippi Sioux, who re- 
served for their future occupation a strip of land 
10 miles mde on both sides of the Saint Peters 
or Minnesota River below the Yellow Medicine 



97 

River. The consideration for these treaties, after 
the pajTLient of certain sums for specified pur- 
poses, was to be placed in the Treasury of the 
United States at 5 per cent to be paid to the said 
bands in 50 annual installments, thereby mping 
out the entire consideration, principal and interest. 

IV. 

The defendants object to the plaintiffs' pro- 
posed finding No. TV upon the ground that the 
statement that the Pipestone Eeservation was well 
within the country of the Yankton' Sioux prior to 
1851 is not established by the record in this case. 
The court is therefore requested to find in lieu 
thereof the following: 

The Mississippi Sioux, composed of the Sisse- 
ton, Wahpeton, Medawakanton, and Wapekoota 
Bands, from time immemorial, occupied the coun- 
try on which the PiiDestone Quarry is situated. 
The Yankton Sioux from time immemorial occu- 
pied the country from the Big Sioux River to the 
Missouri River (post, pp. 106-118). 



The defendants object to the plaintiff's pro- 
posed finding No. V upon the ground that the 
facts there stated are not sustained by the record. 
As we have said before, all of the tribes objected 
to the sale of the Pipestone Quarry, but the In- 
dians who claimed and sometimes exacted part of 
the annuities of the Sissetons were the Yank- 



98 

toiiais; in fact the Sissetons themselves did not 
Jvno^v that they had sold the Pipestone Quarry. 
The court is therefore requested to iiud in lieu 
thereof the following: 

From time inmiemorial all of the different tribes 
or band of Sioux were accustomed to visit without 
molestation or fear the Pipestone Quarry for the 
purpose of pi'ocuring stones for their pipes and 
ornaments. After the treaty of 1851, at nearly 
every payment of annuities to the Mississippi 
Sioux, the Yanktonais Indians visited the upper 
agency and attem^^ted to procure a share of the 
annuities of the Sisseton and Wahpeton Indians 
upon the ground that the Mississippi Sioux by the 
treaties of 1851 had disposed of land in which they 
had an interest, particularly the Pipestone 
Quarry, and the Yankton and Teton Tribes also 
made complaints that the Mississippi Sioux had 
disposed of lands in which they had an interest, 
and the Yankton also expressed a desire to enter 
into a treaty with the Government by which they 
would receive annuities. In order to settle the 
trouble the Government entered into a treaty with 
the Yanliton Indians in 1858, and attemijted, but 
imsuccessfully, to enter into a treaty with the 
Yanktonais (post, pp. 118-125). 

VI. 

The defendants object to the plaintiffs' pro- 
posed finding No. VI upon the ground that the 
facts in the treaty of 1858 have not been set out 



99 

^Aith sufficient fullness and particularity. We 
realize, of course, that it is not necessary to set out 
or even refer to treaties, agreements, or acts of 
Congress in findings of fact, but if it is done at all 
it should be done so as to show all of the material 
facts therein. The court is therefore requested to 
find in lieu thereof the following : 

The Yankton Sioux by the treaty of April 19, 
1858 (11 Stat. 743), ceded all of the lands owned, 
possessed, or claimed by them, wherever situated, 
for the sum of $1,650,000, payable in 50 years, and , 
reserved for their occupation 400 acres on the 
Missouri River. The eastern line of their cession 
was defined as the Big Sioux River from Lake 
Kampeska to its junction with the Missouri River. 
Article VIII reads as follows: 

The said Yankton Indians shall be se- 
cured in the free and unrestricted use of the 
red pipestone quarry or so much thereof as 
they have been accustomed to frequent and 
use for the purpose of procuring stone for 
pipes ; and the United States hereby stipu- 
late and agree to cause to be surveyed and 
marked so mucli thereof as shall be neces- 
sary and proper for that purpose, and re- 
tain the same and keep it open and free to 
the Indians, to visit and procui'e stone for 
pipes so long as they shall desire. 

YII. 

The defendants object to the plaintiffs' pro- 
posed finding No. YII upon the ground that it is 
immaterial whether the Yankton Indians under- 



100 

stood and believed that tliey had acquired an abso- 
lute title to the Pipestone Reservation by Article 
VIII of the treaty of 1858, and the statement that 
they claimed the United States gave them the 
actual title as. well as the right of possession is 
just as inmiaterial. In fact, as we have stated 
before, all of the tribes and bands of the Sioux 
claimed the right to visit the quarry and procure 
stone fo]' their pipes. 

The court is therefore requested to find in lieu 
thereof the following: 

At the instigation of one of their chiefs, Struck- 
by-the-Eee, the Yankton Indians refused abso- 
lutely to enter into any treaty unless some pro- 
\dsion was inserted therein recognizing their right 
to take stones from the Pipestone Quarry for their 
pipes. Therefore, in order to effect a treaty, 
Article VIII was added. 

VIII. 

The defendants offer no objection to the plain- 
tiffs' proposed finding No. VIII. 

IX. 

The defendants offer no objection to the plain- 
tiffs' proposed finding No. IX. 

X. 

The defendants offer no objection to the plain- 
tiffs' proposed finding No. X. 



101 

XI. 

The defendants offer no objection to the plain- 
tiffs' proposed finding No. XI. 

XII. 

The defendants object to the plaintiffs' pro- 
posed finding No. XII upon the groimd that the 
facts stated as preliminaiy to the quotation of Ar- 
ticle XVI of the agreement of December 31, 1892, 
are not sustained by the record. The alleged en- 
croachments and depredations of white men and 
other Indians on the Pi]3estone Quarry had noth- 
ing to do with the insertion of Article XVI in the 
treaty. The Govermnent owned the land in fee 
and had the right of possession acquired from the 
Indians who occupied the land, and it had the 
power to grant the same privilege to any other 
Indians or to white men to take stone from the 
quarry, so long as it did not interfere with the 
right of the Yanktons under Article VIII of the 
treaty of 1858 to '^ procure stone for pipe so long 
as they desire." The reason for the insertion of 
Article XVI was that the commission who nego- 
tiated the agreement of 1892 were impressed with 
speeches made by certain Yankton Indians in 
which they claimed that under Article VIII of 
the treaty of 1858 the Government had granted to 
the Yankton tribe the possession and fee simple 
title to the quarry, and in order to settle this 
question the article was inserted. 



102 

The court is therefore requested to insert in 
lieu of plaintiffs' proposed finding No. XII the 
following : 

The commission which negotiated the treaty of 
December 31, 1892, ratified by section 12 of the 
act of August 15, 1894 (28 Stat. 286, 314, 317-319), 
being impressed by the speeches made by certain 
menil^ers of the Yankton Tribe, in which they 
claimed that the Government by Article VIII of 
the treaty of April 19, 1858, gave to the said tribe 
the fee simple title and possession of the Pipe- 
stone Quarry, inserted Article XVI, which reads 
as follows: 

If the Government of the United States 
questions the ownership of the Pipestone 
Reservation by the Yankton Tribe of Sioux 
Indians under the treaty of April 19, 1858, 
including the fee to the land as well as the 
right to w^ork the quarries, the Secretary of 
the Interior shall as speedily as possible 
refer the matter to the Supreme Court of 
the United States to be decided by that tri- 
bunal. And the United States shall fur- 
nish without cost to the Yankton Indians at 
least one competent attorney to represent 
the interest of the tribe before the court. 
If the Secretary of the Interior shall not, 
wdthin one year after the ratification of this 
agreement by Congress, refer the question 
of ownership of the said Pipestone Reserva- 
tion to the Supreme Court as provided for 
above, such failure upon his part shall be 
construed as and shall be a waiver by the 



103 

United States of all its rights to tlie owner- 
ship of the said Pipestone Reservation, and 
the same shall thereafter be soleh^ the prop- 
erty of the Yankton Tribe of Sioux Indians, 
including the fee to the land. (Rec, pp. 
17, 18.) ^ 

XIII. 

The defendants object to the plaintiffs' pro- 
posed finding No. XIII upon the ground that it 
vras a legal impossibility to present Article XVI 
of the agreement of December 31, 1892, to the 
Supreme Court for construction. The Secretary 
of the Interior had presented the matter to the 
Department of Justice for an opinion and had 
been informed that it was impossible to comply 
with the article, and for that reason it was never 
presented. The court is therefore requested to 
find in lieu thereof the following : 

The Secretary of the Interior liaving been ad- 
vised by the Departmeijt of Justice that it was 
impracticable to present Article XVI of the agree- 
ment of December 31, 1892, to the Supreme Court 
for construction, let the matter rest until further 
action by Congress. (Rec, p. 18.) 

XIV. 

The defendants object to plaintiffs' proposed 
finding No. XIV upon the ground that it should 
have set out part of the matter contained in the 
plaintiffs' proposed finding No. XIII and the 
reasons which actuated Congress in refusing to 

5811—17 4 



104 

ratify the agreement of 1899. The court is there- 
fore requested to find in lieu thereof the fol- 
lowing : 

The Indian apx^ropriation act of June 7, 1897, 
contained the following clause (30 Stat., 87) : 
" The Secretary of the Interior is directed to 
negotiate through an Indian inspector for the 
Yankton Tribe of Indians of South Dakota for 
the purchase of a parcel of land near Pipestone, 
Minn., on which is now located an Indian in- 
dustrial school.'- Under this act Inspector James 
McLoughlin negotiated an agreement with the 
plaintiffs on October 2, 1899, for the transfer of 
their interest in the Pii)estone Quarry to the 
United States for the sum of $100,000, and trans- 
mitted the same to the Department of the Interior 
on October 9, 1899, and the agreement was trans- 
mitted to Congress by the department on I\farch 
21, 1900, and the report of Inspector McLoughlin, 
the agreement, and the council proceedings were 
printed in full as House Document No. 535, Fifty- 
sixth Congress, first session. (Vol. Docs, filed by 
defendants on June 13, 1912, p. 128.) On March 3, 
1903, Senator Quarles, from the Senate Committee 
on Indian Affairs, submitted an adverse report 
on the bill ratifying the agreement (S. 1472), 
which, after quoting Article VIII of the treaty 
of April 19, 1858, stated that the only title the 
Yanktons had was in the nature of an easement, 
and that it was a legal and practicable impossi- 
bility for the Secretary of the Interior to have 
referred Article XVI of the agreement of De- 



105 

cember 31, 1892, to the Supreme Court for cou- 
struction. The bill never became a law and the 
agreement has never been ratified. (Rec, p. 18.) 
On April 4, 1906, Senator Gamble, from the 
Senate Connnittee on Indian Affairs, submitted 
a favorable report (S. Rept. 2369, 59th Cong., 1st 
sess.) on S. 2993, ratifying the agreement of 
1892 (Rec, p. 19). This bill also never became a 
law. 

XV. 

The defendants object to the plaintiffs' pro- 
posed finding No. XV upon the ground that the 
jurisdictional act should have been set out as 
heretofore requested by the defendants in lieu of 
plaintiffs' proposed finding No. I. 

CONCLUSIOIT OF LAW. 

In lieu of the plaintiffs' proposed conclusion of 
law (Rec, p. 72) the court is requested to decide 
as follows : 

Uj)on the foregoing findings of fact the court 
decides as a conclusion of law that the only 
interest the Yankton Tribe of Indians of South 
Dakota has in and to the Pipestone Quarry is the 
right to visit the said quarry and procure stone 
for their pipes so long as they desire, and that 
the Government shall retain so much of the said 
quarry as shall be necessary and proper for that 
purpose, and keep it open and free to the said 
Indians to visit and procure stone for their pipes 
as aforesaid. 



106 

BRIEF. 
STATEMENT. 

This suit was brought under the provision in the 
Indian appropriation act of April 4, 1910 (36 
Stat., 281), which gave tliis court jurisdiction to 
hear and report a finding of fact as to the inter- 
est, title, ownership, and right of possession of the 
Yankton Sioux Indians in and to the Red Pipe- 
stone Quarry. 

LOCATION OF RED PIPESTONE QUAERY. 

The Red Pipestone Quarry is located in the 
southwest corner of Minnesota, about 15 miles east 
of the Big Sioux River and about 7 miles east of 
the South Dakota line. It is situated in sections 
1 and 2 of township 106 north, range 46 Avest, and 
sections 35 and 36 of township 107 north, range 
46 west of the fifth principal meridian, and con- 
tains 648.2 acres, more or less. (Rec, pp. 11, 
12, 25.) 

THE SIOUX OF THE MISSISSIPPI^ COMPOSED OF THE 
SISSETON, WAHPETON^ MEDAWAKANTON, AND WAH- 
PEKOOTA BANDS, WERE FROM TIjNIE IMMEMORIAL 
THE OWNERS BY THE ORDINARY INDIAN TITLE OF 
OCCUPANCY OF THE LANDS ON WHICH THE PIPE- 
STONE QUARRY STANDS. 

As early as the year 1803 the Sioux or Dakotah 
Indians were divided geographically into two gen- 
eral groups — the Sioux of the Mississippi, com- 
posed of the Sisseton, Wahpeton, Medawakanton, 



107 

and Wahpekoota Bands — occupying the country 
between the Mississippi and the Big Sioux Rivers, 
and the Sioux of the Missouri, occupying the 
country west of the Big Sioux River and on both 
sides of the Missouri River, composed of the 
Tetons, the Yanlvtons of the south, and the Yank- 
tons of the north, afterwards known as tlie Yank- 
tonais; the Southern Yanktons, the plaintiffs in 
this suit, occupying the country between the 
Jacques, now known as the James River, and the 
Big Sioux and the Des Moines Rivers. 

Concerning the location of the plaintiffs, the 
Yanktons of the south, and the Sioux of the 
Mississippi from whom the United States acquired 
the land on which the Pipestone Quarry is located, 
Capts. Lewis and Clark in the histor}^ of their 
expedition across the continent in 1803 say: 

Almost the whole of that vast tract ot 
country between the Mississippi, the Red 
River of Lake Winnipeg, the Saskar- 
shawan, and the Missouri is loosely oc- 
cupied by a great nation, whose primitive 
name is Darcota, but who are called Sioux 
by the French, Sues by the English. Their 
original seats were on the Mississippi, but 
they have gradually spread themselves 
abroad and become subdivided into numer- 
ous tribes. Of these, what may be con- 
sidered as the Darcotas are the Mindawar- 
carton or Minowakanton, known to the 
French by the name of the Gens Du Lac, 
or People of the Lake. Their residence is 



108 

on both sides of the Mississippi, near the 
Falls of St. Anthony, and the probable 
number of their warriors about 300. Above 
them, on the river St. Peters, is the Wah- 
patone, a smaller band of nearly 200 men; 
and still farther up the same river, below 
the Yellow Wood River, are the Wahpa- 
tootas, or Gens de Feuilles, an inferior band 
of not more than 150 men ; while the sources 
of the St. Peters are occupied by the Sisi- 
toones, a band consisting of about 200 
warriors. 

These bands rarely, if ever, approach the 
Missouri, which is occupied by their kins- 
men, tlie Yanktons and the Tetons. The 
Yanktons are of two tribes — those of the 
plains, or rather of the north, a wandering 
race of about 500 men, who roam over the 
plains at the heads of the Jacques, the 
Sioux, and the Red Rivers; and those of 
the south, who possess the country between 
the Jacques and the Sioux Rivers and the 
Desmoines; but the bands of Sioux most 
known on the Missouri are the Tetons. 
* * * The Sioux themselves, though 
scattered, meet annually on the Jacques, 
those on the Missouri trading mth those on 
the Mississippi. (Vol. 1, pp. 204-206.) 

George Catlin, the artist and traveler, the first 
white man to visit the Pipestone Quarry, gives a 
very interesting account of his visit in 1836 to this 
celebrated place in his book on the Manners, 
Customs, and Conditions of the North American 
Indians, volume 2, pages 160-206. 



109 

While en route Mr. Catlin and his English com- 
panion were forcibly stopped by Sioux Indians 
at Traverse des Sioux on the St. Peters or Minne- 
sota River, who informed them that they could go 
no farther; that the Red Pipe Stone Quarry had 
been given to them by the Great Spirit and that 
no white man should profane its sacred precincts 
by his presence. They also believed that he was 
an agent of the Government sent out to examine 
the quarry with a view to gaining posssession of 
it. However, in defiance of their protests and 
threats, Mr. Catlin proceeded on his way to the 
quarry, where he remained for some time studying 
its physical conformation and surroundings (pp. 
166, 172-176). While there he obtained some 
specimens of the stone which he carried away and 
of which he had an analysis made (pp. 205-206). 
The place where Mr. Catlin was stopped by the 
Indians was one of the principal villages of the 
Sissetons and the place Avhere the treaty of July 
23, 1851, was negotiated with the Sisseton and 
Wahpeton Sioux, which is generally spoken of as 
the treaty of Traverse des Sioux (10 Stat, 919). 
Mr. Catlin (p. 169) said: 

Amongst the Sioux of the Mississippi, 
ivlio live in the region of the Red Pipe 
Stone Quarry, I found the following and 
not less strange tradition of the same sub- 
ject. " Many ages after the red men were 
made, when all the different tribes were at 
war, the Great Spirit sent runners and 



110 

called them all together at the " Eed Pipe." 
He stood on the top of the rocks, and the 
red people were assembled in infinite num- 
bers on the plains below. He took out of 
the rock a piece of the red stone and made 
a large pipe; he smoked it over them all; 
told them it was part of their flesh; that 
though they were at war, they must meet at 
this place as friends; that it belonged to 
them all; that they must make their calu- 
mets from it and smoke them to him when- 
ever they wished to appease him or get his 
good will; the smoke from his big pipe 
rolled over them all, and he disappeared in 
its cloud; at the last whiff of his pipe a 
blaze of fire rolled over the rocks and 
melted their surface. At that moment two 
squaws went in a blaze of fire under two 
medicine rocks, where they remain to this 
day and must be consulted and propitiated 
whenever the pipestone is to be taken 
away. ' ' [Italics ours. ] 

In 1838 Mr. Nicollet was employed by the 
Bureau of Topographical Engineers of the United 
States Army to collect additional materials for a 
map of the United States then in course of prepa- 
ration, and the result of his labors was published 
as Senate Document No. 237, Twenty-sixth Con- 
gress, second session (serial No. 380). His au- 
thority for making the investigations is set out in 
the introduction, and his map will be found be- 
tween i3ages 96 and 97. 



Ill 

Mr. Nicollet visited the Pipestone Quarry in 
1838, two years after Mr. Catlin, , and after de- 
scribing some old Indian fortifications which he 
found in the vicinity, he said: 

Bnt to return to the Red Pipestone 
Quarry. The Indians of all the surround- 
ing nations made a regular annual pilgri- 
mage to it unless prevented by their wars 
or dissentions. The quarry is on the lands 
of the Smsiton Band of Sioux (p.* 15). 
[Italics ours.] 

Mr. Nicollet (p. 18) speaks of certain infor- 
mation as to copper earth given him " by Sleepy- 
eye, the Chief of the Sissitons, who accompanied 
me during this excursion (p. 18). He also gives 
(p. 17) an analysis of the i^ipestone by Prof. Jack- 
son, of Boston, who applied to it the name of 
" catlinite," after ]\[r. Catlin. 

Tlie map of Mr. Nicollet shows the country of 
the Yankton Sioux in 1838 as between the jMis- 
souri and the Jacques or James Rivers, Dakota 
(p. 96). 

Alexander Ramsey, governor and ex officio 
superintendent of Indian Affairs for the TeiTitory 
of Minnesota, in a report to the Commissioner of 
Indian Affairs, dated October 13, 1849 (Senate 
Executive Documents, Vol. 2, No. 1, Pt. 2, Serial 
550, pp. 1005-1036), gives a very comprehensive 
and accurate account of the different tribes or 
bands composing the Great Sioux or Dakota Na- 
tion and pays particular attention to the ])oun- 

5811—17— — 6 



112 

daries of the coimtiy inhabited by each tribe or 
band ; in fact, so much stress is laid upon this sub- 
ject that the conclusion is irresistible that this in- 
foi'mation was furnished to the Commissioner of 
Indian Affairs with special reference to the malt- 
ing of the treaties of July 23 and August 5, 1851, 
known as tlie treaties of Traverse de Sioux and 
Mendota, with the four bands of the Mississippi 
Sioux. 
Speaking of the Sissetons (p. 1021) he says: 

The Si-si-t'wans do very little at cultivat- 
ing the soil, but depend mainly for subsist- 
ence upon hunting. 

This band claims the custody of the 
famous icaken the red pipestone quarry 
near the Coteau des Prairies, toward the 
river Jacques. 

Concerning the Yanktons (pp. 1022-1023) he 
says: 

This band is another jDowerful division of 
the Dacotah Nation. Their appellative is 
correctly written Ihank-t'wans, instead of 
Yanctons (pronounced E-hawn-k-t'wans, 
compounded from ihanke, further end, and 
tonwan) being the " people of the further 

end." 

* * * * ^f 

The country of the Ihank-t'wans is next 
heyond that of the Si-si-t'tvan sith-trihe, 
commencing on the western side of Lake 
Traverse and extending west of the river 
Jacques to the Missouri, above old Fort 



113 

Lookout, and to the borders of the lands of 
their scions, the Ihank-t'wan alis. * * * 
With the exception of the suffix nan, the 
name of this band is the same exactly as 
the previous one. The addition nan is the 
diminutive little, or less; so that the band 
may be designated as the " lesser people of 
the further end," or the " Little Ihank- 
t'wans," commonly termed by the whites 
Yanctonies — E-hawn-k 'wawm-nah, it is said, 
being the true Dacotah pronunciation of 
their name. 

Their lands are all that range of countrij 
west of the IhanU-t'tvans, nearly to the 
White Earth river, the boundary of this 
territory to the northwest, including the 
salt-water region. Lewis and Clark de- 
scribed them as " Yanctons of the Plains, 
or Big Devils, who rove on the heads of 
the Sioux, Jacques, and Red Rivers, and 
number about five hundred men." [Italics 
ours.] 

This statement concerning the Yanctonais is im- 
portant as showing that it was evidently the 
Yanktonais who were referred to both as Yank- 
tons and Yanktonais by different Indian agents 
after the treat}^ of 1851 as creating disturbances at 
the annual payments of annuities to the Missis- 
sii>i>i Sioux on the ground that they had disposed 
of land belonging to them, meaning the Piijestone 
Quarry, in which all of the Sioux were interested 
in having the right to obtain stone for their pipes 
and ornaments. It is the Yankton Sioux, called 



114 

in earlier times Southern Yanktons to distinguish 
them from the Northern Yanktons or Yanktonais, 
who are the plaintiffs in this suit. 

Kintzing Pritchette, special agent of the Indian 
Office, in a report to the Commissioner of Indian 
Affairs, dated October 15, 1857 (Senate Docs., 1st 
sess., 35th Cong., Serial No. 919, pp. 387-39G), 
speaking of the dissatisfaction among the bands 
and tribes of Sioux, and the practice of the Gov- 
ernment in dealing with separate bands for lands 
in which the whole nation was concerned (p. 394), 
said : 

The sale of the Red Pipestone Quarry 
is a fruitful source of discord among them, 
it always having been considered the com- 
mon property of the whole nation, which no 
part of it had the right separately to dis- 
pose of. 

The Sissetons who were in occupatwn of 
the country in tvhich it lies, and who were 
parties to the treaty of 1851, insist that it 
was never their intention to cede it. By 
retaining this in the hands of the Govern- 
ment and distributing at proper times suf- 
ficient of the stone for the general use, they 
might ultimately be reconciled to its dis- 
possession. [Italics ours.] 

Inspector McLaughlin, the oldest employee of 
the Indian Office in length of service, and the au- 
thor of the valuable i^ublication " My Friend the 
Indian," probably the best informed man on the 
subject, has made an exhaustive and careful in- 



115 

vestigation of the claim of the Yanktons to the 
Pipestone Quarry, the result of which is contained 
ill his report to the Secretary of the Interior 
dated March 15, 1912 (Bee, pp. 11-21), with maps 
attached, and we may say that this report has 
been recognized and extensively used h'v tlie attor- 
ney for the plaintiffs in his brief. Inspector Mc- 
Laughlin, after referring to the fact that both the 
Yanktons and the Santees received certain allow- 
ances under treaty on the Missouri River, said 
(Rec, p. 15) : 

From this it would appear that the San- 
tees had certain rights as far as the Mis- 
souri River, while I have been unable to 
find anything to show that the Yanktons 
ever occupied any country east of the Big 
Sioux. " Santee " is but another name for 
the Medawakanton, Wahpekoota, Sisseton, 
- and Wahpeton Bands of Sioux, or the 
Sioux of the Mississippi, and being sliort 
and easy of pronunciation was often used 
in place of the longer name. It is so used 
in another place in this report {]\ ^'^)- 
See also map No. 1 attached to his report (Rec, 
p. 22), which shows the Sissetons and Wahpetons 
in 1849 occupying the country around the Pii^e- 

stoiie Quarry. 

The map prepared by the Land Office and filed 
in the case of the Sisseton and Wahpeton Indians 
V The United States (42 C. Cls., 416; 208 U. S., 
561), in which the ownership of the Pipestone 
Quarry was not in cpiestion, shows that the Sisse- 



5811—17- 



116 

ton subbancl of White Lodge occupied lands about 
the quarry. 

A number of prominent members of the bands 
composing the Mississippi Sioux were examined in 
this case under the rules of the court and all of 
them testified, either from personal knowledge or 
from tradition, that the Sioux River was the 
western boundary of the Minnesota Sioux. 

Eli Abrahams (Rec, pp. 27-29) testifies (p. 
28) that he heard the old men of the tribe say 
that the western boundary was Crooked River, 
now known as the Sioux River. 

Napoleon Wabashaw (Rec, pp. 29, 30) testi- 
fied (p. 29) that he was told by his father, Chief 
Wabashaw, that the Crooked or Sioux River was 
the western boundary. (His father, from whom he 
got this information, was the celebrated Chief 
Wabashaw, who remained friendly to the whites 
in the Minnesota massacres of 1862 and 1863.) 

Thomas Whipple (Rec, pp. 30-32) testified 
(p. 31) that he heard from his grandfather and 
parents that the Indians always claimed as far as 
Crooked or Sioux River. 

Thomas K. West (pp. 32-34) testifies (p. 33) 
that he heard the old men of the tribe say that the 
land belonging to the Minnesota Sioux extended 
to the Sioux River. He also testified that at the 
time the treat.y of 1851 was made the Sissetons 
and Wahpetons of White Lodge's band roamed 
about the country around the Pipestone Quarry, 
and that he heard they planted corn on the Sioux 



117 

Elver at a place now called Eagan (near Flan- 
dreau, S. Dak.). 

Joseph P. Hillers (Rec, pp. 3J:-36) testifies 
(p. 35) that he heard his father and other old 
men of the tribe say that the western boundary 
of their country was the Big Sioux River, and 
that the land west of the Pipestone Quarry be- 
longed to them, and that the Wahpetons and a 
small band of the Sissetons roamed the country 
about the Pipestone Quarry. 

The Rev. John Eastman (pp. 36-38) testifies 
(p. 37) that diffeient old men of the tribe told 
him, and it was also a tradition of the tribe, that 
the Sioux River was the Avestern boundary of 
the Minnesota Sioux, and that Lean Bear's band 
of Sissetons and Wahpetons lived near the Pipe- 
stone Quarry, and that he hunself had visited 
their village, and that he knew they lived there 
before 1851, because an uncle who had married 
into the band told him so. That Lean Bear was a 
chief of a sub-band of Limping Devil, and was 
killed in the Lake Shetek massacre of 1862 (see 
Heard's History). 

Thomas A. Robertson (pp. 38-41), the best in- 
terpreter the Sioux ever had and the man best in- 
formed in their history and tradition, testifies 

(p. 39) that prior to and at the date of the treaty 
of 1851 Limping Devil's band, sub-bands of which 
were under White Lodge and Lean Bear, com- 
posed of Sissetons and Wahpetons, lived near the 



118 

Pipestone Quarry. He says the Sioux River was 
the western boundary of the Minnesota Sioux. 

Joseph R. Brown (Rec, pp. 41-42), son of Gen. 
Joseph R. Brown, who was for a number of years 
agent of the Minnesota Sioux and prominent in 
the early history of Minnesota, testifies (p. 42) 
that he was told by prominent members of the 
tribe that the Sioux River was the western 
boundary of the Minnesota Sioux. 

FROM TIME IMMEMORIAI. ALL OF THE NORTHWEST- 
ERN TRIBES EAST OF THE ROCKY MOUNTAINS VISITED 
THE PIPESTONE QUARRY FOR STONES FOR THEIR 
PIPES. 

Catlin from his investigations of this subject 
was convinced that the Indians of all the north- 
western tribes from time immemorial were in the 
habit of making periodical visits to the Pipestone 
Quarry for pipestones. The legend current 
among the tribes generally was that the Great 
Spirit had given the Pipestone Quarry to all of 
the Indians, who were to have the privilege of 
visiting it without fear of violence and of procur- 
ing all the stone necessary for their pipes. The 
legend is almost identical with that current among 
the Sioux (ante, pp. 109, 110) which has been 
heretofore given: 

Here (according to their tradition) hap- 
pened the mysterious birth of the red pipe, 
which has blown its fumes of peace and war 
to the remotest corners of continent; 



119 

which has visited every warrior and passed 
through its reddened stem the irrevocable 
oath of war and desolation. And here also, 
the peace-breathing calumet was born, and 
fringed with the eagle's quills, wliich has 
shed its thrilling fumes over the land and 
soothed the fury of the relentless savage. 

The Great Spirit at an ancient period, 
here called the Indian nations together, and 
standing on the precipice of the red pipe- 
stone rock broke from its wall a piece and 
made a huge pipe by turning it in his hand, 
which he smoked over them, and to the 
north, the south, the east, and the west, and 
told them that this stone was red; that it 
was their flesh; that they must use it for 
their pipes of peace; that it belonged to 
them all; and that the war club and scalp- 
ing knife must not be raised on its ground. 
At the last whif of his pipe his head went 
into a great cloud, and the whole surface of 
the rock for several miles was melted and 
glazed; two great ovens were opened be- 
neath, and two women (guardian spirits of 
the place) entered them in a blaze of fire; 
and they are heard there yet (Tso-mec-cos- 
tee and Tso-me-cos-te-won-dee), answernig 
to the invocations of the high priests or 
medicine men, who consulted them when 
they are visitors to this sacred place. 
(Manners, Customs, and Condition of the 
North American Indians, Vol. II, pp. 
163-164.) 

5811—17 8 



120 

It was this legend which suggested to Longfel- 
low his celebrated poem of Hiawatha, wliich 
begins : 

On the Mountains of the Prairie, 
On the great Red Pipe-stone Quarry, 
Gitche Mauito, the mighty, 
He the Master of Life, descending, 
On the red crags of the quarry 
Stood erect, and called the nations, 
Called the tribes of men together. 

See notes to page 235, Vol. TT, edition of 1875, 
referring to Mr. Catlin's work and the above 
legend. 

Mr. Catlin (note to p. 168 of Vol. II, Man- 
ners, Customs, and Condition of the North Ameri- 
can Indians) says: 

I have often conversed with Cen. Clark, 
of St. Louis, on this subject, and he 
told me explicitly and authorized me to say 
it to the world, that every tribe on the Mis- 
souri told him they had been to this ])lace, 
and that the Great Spirit kept the peace 
among his red children on that ground, 
where they had smoked with their enemies. 

The Gen. Clark who made tlie above statement, 
was the Capt. Clark who accompanied Capt. 
Lewis in his expedition from the mouth of the 
Missouri Elver to the Pacific Ocean, and after- 
wards held many prominent positions, among 
w^hich that of superintendent of all the western 
and northwestern tribes. (Introduction to Jour- 
nal of Lewis and Clark.) 

Mr. Catlin says that he also talked with a num- 
ber of the chiefs of, the northwestern tribes, who 



121 

told him that they had visited the Pipestone 
Quarry before the Sioux had driven them off and 
prohibited their visits, and gives the conversa- 
tions mth a number of them on this subject (pp. 
169, 170, 171). He further says that while the 
redstone pipes are found in almost every tribe on 
the North American continent, he believes they 
were all brought fi om the Red Pipestone Quarry 
of Minnesota, and challenges the world to prove 
that tl}e stone for these pipes i^: produced in any 
other place. That within the past few years (Mr. 
Catlin visited the (juarry in 1836), probably 
through instigation of the whites, " the Sioux 
have laid entire claim to this quarry; and as it 
is in the center of their country, and they are 
more powerful than any other tribes, they are 
able successfully to prevent any access to it " 

(p. 167 and note). 
Mr. NicoUett, who visited the quarry in 1838, 

says : 

The Indians of all the surrounding na- 
tions make regular annual pilgrimages 
to it, unless prevented by their wars and 
dissensions. The quarry is on the land of 
of the Sisseton Tribe of Sioux (Senate 
Doc. 237, 26th Cong., 2d sess., serial 380, 
p. 15). 
Superintendent Cullen, of the northern superin- 
tendency (Senate Doc, 1st sess., 35th Cong., serial 
No. 919, pp. 340, 341), concerning the common 



122 

interest of all tlie Sioux Indians in the Pipestone 
Quarry, in 1857, said: 

The '* Great Pipestone " Quarry, the 
Indian Mecca, which, by the treaty of 1851, 
is within the limits of the ceded land, seems 
to be the source of great misunderstanding 
among all these Indians, and some pro- 
vision should be made by the Government 
to reserve from sale or preemption this 
spot, which for generations they have held 
sacred for the purposes which the name 
indicates; and as the material is in uni- 
versal use among them for manufacturing 
their pipes, they consider it more valuable 
than all the lands they possess. 

Kintzing Pritchette, special agent of the Indian 
Oh^ce (Id., p. 394), in a report for the same year, 
said : 

The sale of the Red Pipestone Quarry is 
a fruitful source of discord among them, it 
always having been considered the common 
property of the whole nation, which no part 
of it had the right separately to dispose of. 

Inspector McLaughlin, of the Interior Depart- 
ment, in his report to the Secretary of the Interior 
on this claim, said (Rec, p. 21) : 

The truth is that all of the Sioux bands 
claimed, and have had from time immemo- 
rial, an equal right to use this Pipestone 
Quarry. I asseit this with entire confi- 
dence, both from the official record and 
my own personal knowledge derived from 
49 years acquaintance with the Sioux, 40 



123 

of which has been continuous service 
among the Indians, 24 of the 40 ^^ears being 
spent Avith the Sioux of the plains and 
those of the Mississippi. All the older 
members of the Sioux Tribe will testify to 
the correctness of this view. 

The conclusion of Inspector McLaughlin as to 
the right from time immemorial of the members 
of the Sioux Nation to visit the quarr,y and take 
all the stone they needed for pipes was borne out 
by testimony taken af terAvards under the rules of 
the court on behalf of the defendants. 

Thomas K. West (Rec, p. 34) said that it was 
his understanding that all the Indians who speak 
the Sioux language had the right to come to the 
Red Pipestone Quarry to get stone for their i)ipes. 

Joseph P. Hillers (Rec, p. 36), said: 

It was my understanding that all people 
speaking the Sioux language had the right 
to go there and take out the stone they 
wanted and use them as they saw fit. 

The Rev. John Eastman testifies (Rec, p. 37) 
to the same effect. 

Thomas A. Robertson testifies (Rec, p. 40) 
that — 

All the tribes speaking the Sioux and 
the Dakota language had the privilege of 
going there and getting all the stone they 
needed for pipes and ornaments. 

When asked how long back this custom dated 
he replied: "As far back as I can remember (he 



124 

was 75 years of age on July 18, 1915), and I think 
for 100 and perhaps 200 years." He further 
stated that all the Sioux still visited the Pipestone 
Quarry to procure stone for pipes and ornaments. 

The attorney for the plaintiff has examined five 
Yankton Indians as to the ownersliip of the Pipe- 
stone Quarry (their testimony will be found on 
pp. 43 to 52 of the record), and he has utterly 
failed to establish any ownership by the Indian 
right of occupancy in the Yankton Tribe of the 
land on which the Pipestone Quarry stands. The 
utmost that he has been able to show was that an 
Indian chief by the name of Strike-the-Ree (given 
in the treaties as Struck-by-the-Ree) refused to 
sign the treaty of 1858 until a provision was in- 
serted by which the Yankton Indians were to 
have the right to visit the Pipestone Quarry and 
take all the pipestones they needed. 

His first witness, Red Horse, giving an account 
of the refusal of Struck-by-the-Ree to sign the 
treaty, said: 

He put his finger on his breast and said 
*' The Pipestone Quarry belongs to me." 
He said: '' The Santees sold the Pipestone 
Quarry to me, and if the Great Father will 
give the Pipestone to me in the treaty, I 
mil sign it, other^^ise I will not." He said: 
" If they mil preserve the Pipestone 
Quarry for me, I will sell them the rest 
of the country." (Rec, p. 44.) 

The Santees, to whom this witness refei-s as 
having sold the Pipestone Quarry to the Yank- 



125 

tons, were the Mississippi Sioux, to whom this 
name, meaning eastern Sioux, was applied by the 
Sioux living farther west. It is needless to add 
that there was no such cession or gift by the Mis- 
sissippi Sioux to the Yanktons. 

And so it is with the other witnesses examined 
by the attorney for the plaintiff. All of them 
have dwelt upon this incident of Struck-by-the- 
Ree refusing to sign the treaty of 1858 until the 
provision concerning the Pipestone Quarry was 
inserted. None of them really claim any title by 
occupation to the quarry. 

CESSIOX OF THE PIPESTONE QUARRY. 

The Sisseton and Wahpeton Bands of the Mis- 
sissippi Sioux, by the treaty of July 23 1851 (10 
Stat, 949), commonly kno^^m as the treaty of 
Traverse des Sioux, ceded all of their lands in 
the State of ^iinnesota to the United States, and 
the Medawakanton and Wahpakoota bands, by 
the treatv of August 5, 1851 (10 Stat, 951), 
known as the treaty of Mendota, ceded the same 
lands which l^.ad been held in common by the four 
bands of Mississippi Sioux, and reserved for their 
future occupation a strip of land ten miles wide 
on both sides of the St. Peters or Minnesota 
River. The consideration for these treaties, after 
the pavment of certain sums for specified pur- 
poses, was to be placed in the Treasury of the' 
United States at 5 per cent, to be paid to the said 
bands in 50 annual installments, thereby wipmg 



126 

out the entire consideration, principle and in- 
terest. 

The Eed Pipestone Quarry, above described, 
was embraced within the lines of this cession. 

After the treaty of 1851 the other tribes of 
Sioux living farther west saw the Minnesota 
Sioux receiving annuities, goods, and other ad- 
vantages every year, while they received nothing. 
The tradition of the nation was that at a very 
early period all of the Sioux had lived together 
on the Mississippi River, and that all had an 
interest in the ceded lands, and this was par- 
ticularly true of the Pipestone Quarry, which 
they had all frequented even after their sepa- 
ration and occupation of different hunting 
grounds. They w^ere therefore dissatisfied with 
the pajonents of aniniities to tlie Missisippi Sioux 
alone. The only Indians, however who actively 
interfered at the payments and insisted in shar- 
ing in them w^ere the Yanktonais and the Cut- 
Heads, a branch of the Yanktonais. Several offi- 
cials in charge of these Indians referred to them 
in their reports for the years 1856 and 1857 as 
Yankton Indians. In fact they were called North- 
ern Yanktons by Lewis and Clark as already 
stated above, to distinguish them from the South- 
ern Yanktons, the j^laintiffs in this case. That they 
were Yanktonais, however, was explained by the 
superintendent of the northern super intendency, 
Mr. Cullen, in his report to the Commissioner of 
Indian Affairs for the year 1857. This was fur- 



127 

tlier explained by the reports for 1858, where an 
effort was made to settle the difficulties between 
the Yanktonais and the Sissetons by inducing 
them to enter into a treaty and to give them 
money and goods as an inducement to enter into 
negotiations. 

Superintendent Huebsclnnann, of the northern 
superintendency, in a report to the Conunissioner 
of^ Indian Affairs, September 30, 1856, after 
speaking of delays in carrying out the treaty of 
1851 (Senate Docs., 3d session, 34th Congress, 
No. 875 Serial, p. 589) said: 

The Indians living farther west, the 
Yanktoan Sioux, have as yet made no treaty 
with the United States and receive no an- 
nuity. They have sometimes visited the 
payments to the Sissitoans and Wahpatoans 
and attempted to make disturbances by 
claiming that their country had extended to 
the Yellow Medicine River, and that, con- 
sequently, a part of the money paid for the 
Sioux purchase belonged to them. At other 
times these Indians have sent messages to 
the officers of the department, which show 
their good sense. They desire to make a 
treaty with the United States and to receive 
annuities, and have urgently requested that 
some ploughing be done for them, and they 
be furnished with some hoes and other agri- 
cultural implements. If Congress should 
deem it premature to purchase their land, 
it would be very desirable that funds should 
be provided to break some lands for them 



128 

at one or more of their villages, and to fur- 
nish implements, if thought ]3roper, with 
the distinct understanding that these 
amounts be considered as advance pay- 
ments at the conclusion of a treaty here- 
after. 

Superintendent Cullen in a report to the Com- 
missioner of Indian Affairs, July 26, 1857 (Senate 
Docs., 1st sess., 35th Cong., serial No. 919, pp. 
371, 372), said: 

I will here state in this connection that in 
a council with some of the Yanctons, those 
who came to Yellow Medicine anticipating 
the payment, and exact the contribution 
they make of the Si-si-tons; on the 19th 
instant they expressed themselves favorable 
to making a treaty. I told them I would 
report to you their feelings. I am of the 
oi^inion it will be necessary to adjust the 
matters of difference between the Yanctons 
and Si-si-tons, the Yanctons claiming that 
the latter have, in the treaty of 1751, sold the 
lands belonging to the former and particu- 
larly clamiing the ^'Pipestone Quarry"; 
and as these matters should be adjusted so 
as to i3revent future troubles at subsequent 
payments, I would here call your attention 
to this subject. 

Agent Flandrau, in a report to the Coimnis- 
sioner of Indian Affairs September 21, 1857 (id., 
p. 347), said: 

It will be absolutely necessary that some 
measures should be taken to prevent the 



129 

Yanctons from interferina? in the payments 
of the Sisitons and AVahpetons. 

The reason of their coming to these pay- 
ments, and the ground of their claim, is as 
follows: When the treaty of Traverse des 
Sioux was made, the Sisitons and Wahpe- 
tons were called upon to sell certain lands, 
which they admitted did not belong to them, 
and declined selling, and wei'e tokl they 
were only to sell their right in the lands. 
This they consented to. These lands be- 
longed to the Yanctons, or they had some 
claim on them; and the lands are now re- 
garded as ceded lands, and the Yanctons 
claim a right to a share in the annuities, 
and every payment that has been made has 
been protracted and disturbed l)y the pres- 
ence of these Indians. 

I recommend that a treaty be made with 
them for the i^urchase of their lauds west 
of the " Big Sioux River," and their being 
placed on a reservation, or removed north 
and west. The country west of the " Big 
Sioux " will soon be demanded by the 
whites for settlement, and the sooner it is 
purchased the less trouble the white will 
have to get rid of the Indians and take 
possession of it. I regard it as necessary 
to the prosperity of our Indians that the 
influence of these Yanctons should be with- 
drawn from them; and the best way to do 
it is to put the Yanctons under annuities, 
and settle the difficulties that exist between 
them. 



130 

Superintendent Ciillen, in his report to the 
Commissioner of Indian Affairs September 28, 
1857 (id., 340, 341), said: 

The Yanctonais Sioux, tvho occupy the 
country to the north of the Big Sioux 
River mid ivest of the present Sioux re- 
serve, are anxious to sell their lands to the 
Government and make a treaty. I would 
recommend that steps be taken as early as 
practicable in the spring to make this 
treaty, as their lands lie in the territory 
which, at the next session of Congress, will 
probably receive a separate organization; 
and as the southern portion now open for 
settlement, will receive the emigration which 
is already tending towards the further west, 
it would be advisable, for the safet}^ and 
peace of the settlers in tliis new country, 
that these Indians should be satisfied and 
letnined in subjection. 

These Indians are the ones who interfere 
annually tvith the paymoits at the lJj)per 
Sioux Agency under the pretense of the 
claim that they make, before referred to, 
against the Sisitons, and, besides, they aro 
exceedingly averse to any whites ever cross- 
ing their lands until some treaty is made 
with them. The,y number four hundred 
and fifty lodges, besides about two hundred 
lodges of what are known as the Cut-head 
Yanctonais, and cover a vast extent of 
country and the valleys of several large 
streams, the principal one being the James 



131 

River, which empties into the Missouri and 
is represented as navigable for a consider- 
able distance from the mouth. 

The '' Great Pipestone " Quarry, the In- 
dian Mecca, which by the treaty of 1851 
is within the limits of the ceded land, seems 
to be the source of great misunderstanding 
among all these Indians, and some provi- 
sion should be made by the Government to 
reserve from sale or preemption this spot 
which for generations they have held sacred 
for the purposes which the name indicates ; 
and as the material is in universal use 
among them for manufacturing their pipes, 
they consider it more valuable than all the 
lands they possess. [Italics ours.] 
Special Agent Kintzing Pritchette, in a report 
to the Commissioner of Indian Affairs October 15, 
1857, after pointing out the dissatisfaction grow- 
ing out of dealings with the tribes or bands in- 
stead of the whole nation, which caused the tribes 
or bands not provided for by treaties to think they 
were entitled to part of the annuities (Id., p. 
394), said: 

That this is in part true is evidenced by 
the fact that the Yanctons annually demand 
from the Sisetons a share of their annuity, 
who frequently divide with them their dis- 
tributive portion of goods. 

The sale of the Red Pipestone Quarry is 
a fruitful source of discord among them, it 
always having been censidered the common 



132 

property of the whole nation, which no part 
of it had the right separately to dispose of. 

The Sisetons, who were in occupation of 
the country in which it lies and who were 
parties to the treaty of 1851, insist that it 
was never their intention to cede it. By re- 
taining this in the hands of the Govern- 
ment and distributing at proper times suffi- 
cient of the stone for the general use they 
might ultimately be reconciled to its dis- 
possession. * * * 

The Yanctons have expressed a wish to 
treat for the sale of a portion of their coun- 
try, and the Sioux for a part of their 
reserA^e. * * * 

Superintendent Cullen in his report to the 
Commissioner of Indian Affairs, Septeml)er 30, 
1858 (Message and Documents, 1858, 1859, pt. 1, 
p. 406), said: 

The Yanctonnais, with a strong show of 
justice, claimed an interest in the lands 
sold under the treaty of 1851 at Traverse 
des Sioux, and they made frequent applica- 
tions to the officers of Government for a 
compensation for their iiiterest in the said 
land. After being told by yourself that 
their demands would be again presented to 
the department, and that the response 
would be made to them the succeeding 
(past) sunmier, they, without waiting un- 
til the time proposed for your interview 
with them had arrived, assaulted and 
drove from their houses many peaceful 
citizens located east of the Sioux River, 



133 

destroying their property and burning 
their houses. Subsequent to this they 
were met by an agent of Government with 
an inidtation to a friendly comicil, for the 
purpose of discussing their claims and 
making remuneration for the same, and 
they absolutely refused any such m^eeting 
because the Tetons and other bands resid- 
ing west of the Missouri could not be 
present. 

A second message was sent to them 
through mixed bloods of their own bands 
with the same result and the same reply- 
all, in my opinion, to gain time for a con- 
centration of their numbers next spring, 
when the buffalo will provide them with 
meat for their support while operating 
against the whites. These Indians oc- 
cupij generalhj the valle^j of the James and 
the country hetiveen that and the Missouri, 
and they, therefore, are out of the range of 
any of the forts, and can reach our white 
settlements in the Sioux Valley without any 
interruption whatever. The failure to pur- 
sue and punish Inkpaduta and his band 
for the wholesale murder of our citizens at 
Spirit Lake has confirmed them in the be- 
lief that the Government is weak and can 
not punish Indian aggressions except 
through the assistance of the Indians; 
hence their expectation of reclaiming and 
holding the country along the Sioux and 
extending to the Pipestone Quarry, all of 
ivhich they pretend to oicn. [Italics ours.] 



134 

Special Agent Kintzeng Pritchette in a report 
to the Commissioner of Indian Affairs, August 
22, 1858 (id. pp. 420, 421), said: 

Beside the dissatisfaction between the 
Yanctonnais and Se-see-toans, the Yank- 
tons are at variance in regard to the late 
treaty, as I was informed by one of their 
chiefs, w^ho visited me with a party of his 
people while encamped at Kampeska Lake. 
He declared that he was no party to that 
treat}^, and dissented from its provisions. 

The friendly disposition of the Tetons on 
both sides of the Mississippi is doubtful. 

One of the bands of that nation, to whom 
presents are directed to be bestowT^d by 
3^our instructions to the superintendent of 
the 8th of July last — to w4t, the '' Sans 
Arcs " — I was informed by the Yancton- 
nais, are in open hostility against the 
United States. 

Superintendent Cullen, in a communication to 
Special Agent Pritchette, July 9, 1858 (id., p. 
421), said: 

Sir: In accordance with a communica- 
tion of the Commissioner of Indian Affairs 
of June 29, informing me you had been 
appointed a special agent of the Indian 
Department to act in regard to matters 
connected with the Yanctonnais Indians, 
now on their way toward the Yellow Medi- 
cine, for the purpose of interfering with 
the payment of annuities to the Se-see-toans 
and Wah-pay-toan Sioux Indians; and that 



135 

you would report yourself to me for duty, 
you are hereby instructed to proceed, with- 
out delay, to meet the Yanctomiais Indians 
and make known to them that the Govern- 
ment is engaged in initiating measures in 
their behalf, and that goods and other 
articles are now being purchased which will 
be distributed among them during the pres- 
ent season. 
The efforts of Special Agent Pritchette to reach 
an agreement with the Yanktonnais Sioux to settle 
their differences with the Mississippi Sioux has 
been fully set out in the minutes of councils held 
with the Yanctonnais July 29 and 31, 1858 (id., 
pp. 422-426). 

It is therefore perfectly clear, as we said be- 
fore, that it was the Yanctonais who actually in- 
terfered at the pajanents of annuities to the ^din- 
nesota Sioux, although it is evident that the Yank- 
tons and all of the other Sioux not included in the 
treaties of 1851 were dissatisfied, especially with 
the sale of the Pipestone Quarry. The same con- 
clusion was reached by Inspector McLauglilin in 
his report to the Commissioner of Indian Affairs 
on this claim, March 15, 1912 (Rec, p. 19) : 

The Yanktons were not the only Indians, 
nor the principal ones, who objected to the 
ceding of the Sisseton and Wahpeton lands 
without their consent. Certainly they did 
not do so after the Sisseton payment of 
1857, for in the spring of 1858 they ceded 
their own land without the consent of the 



136 

other Sioux Bands. The Yaoktonais re- 
sented this as vehemently as they did the 
Sisseton and Wahpeton cession and be- 
sought their agent, A. H. Redfield, at Fort 
Union, in September, 1858, to write their 
Great Father to stop the treaty. (Ind. Comr. 
Rpt., 1858, p. 85.) The Yanktonais were 
the hardest and most persistent of the 
*' kickers," and they continued their opposi- 
tion as late as 1861, or until the terrible 
affair of New Ulm in 1862, which changed 
the -whole aspect of affairs with resyject to 
the four bands of Santee Sioux; their 
treaties were abrogated, their payments 
were stopped, and the Indians themselves 
were driven from their ancient habitations. 
The Yanktonais were a proud and haughty 
people and rejected all overtures to placate 
them. (Ind. Comr. Rpt., 1861, p. 72.) The 
Yanktons, on the other hand, who by rea- 
son of their environment and necessities had 
grown to be a peaceable and an orderly 
people, were friendly to the Government 
and not given to obstruction, certainly not 
after their treaty of 1858. 

THE YANKTON CESSION OF 1858. 

The Yankton Sioux, by the treaty of April 19, 
1858 (11 Stat., 743), ceded all of the lands owned, 
possessed, or claimed by them wherever situated, 
for the sum of $1,650,000, payable in 50 years, 
and reserved for their occupation 400,000 acres on 
the Missouri River. The eastern line of their ces- 
sion was defined as the Big Sioux River from 



137 

Lake Kampeska River to its junction witli the 
Missouri River. 

At the instigation of one of their chiefs, Struck- 
by-tJie-Ree, the Yanktons refused absolutely to 
enter into any treaty unless some provision was 
inserted therein recognizing their right to take 
stones from the Pipestone Quarry for their pipes. 
Therefore, in order to effect a treaty, Article VIII 
was added, which stipulated that — 

The said Yankton Indians shall be secured 
in the free and unrestricted use of the red 
pipestone quarry, or so much as they have 
been accustomed to frequent and use for 
the puipose of procuring stone for pipes; 
and the United States hereby stipulate and 
agree to cause to be surve.yed and marked 
so much thereof as shall be necessar}^ and 
proper for that purpose, and retain the 
sam.e and keep it open and free to the 
Indians to visit and procure stone for pipes 
so long as they desire. 

This clause of tlie treaty was simply a recogni- 
tion of the right of the Yanktons (which they and 
other Sioux bands oi' tribes had exercised from 
time immemorial) to take stones from the Pipe- 
stone Quarry '' for their pipes." It gave them 
no title or interest in the land or quarry, but 
simply a right in the nature of an easement to 
'' procure stone for their pipes so long as they 
desire." 

After this recognition of their right to procure 
stone, the Yanktons very industriously and per- 



138 

sistently asserted their claim to the land on which 
the Pipestone Quarry was situated, and from time 
to time demanded of the Govermnent pa3anent 
therefor. This right they had never asserted be- 
fore and did not assert in their treaty. Their 
claim was no greater than that of any of the 
other Indian tribes vdio resorted to the quarry 
for stones. It was not nearly so great as that 
of the Mississippi Sioux, who occupied the land 
and sold it to the United States under a misappre- 
hension that it had been reserved for their use. 

THE SURVEY OF THE PIPESTONE QUARRY. 

In pursuance of Article VIII of the agreement 
of 1858 the Pipestone Quarry was surveyed and 
marked and a diagram and field notes iiled and 
recorded in the Oeiieral Land Oliice and in the 
office of tlie surveyor genera] of Alinnesoia, and 
in Febiuary, 1860, copies were transmitted to tht- 
United States surveyor general of that State for 
his information when surveying public lands 
therein. The reservation, liowever, was surveyed 
vith other public lands in tliat vicinity, iii.)on 
Avhich the Commissioner of the Land Office di- 
rected the surveyor general to locate the reserva- 
tion on the official plat in his office from the field 
notes and plat of the original survey, or, if im- 
possible, to direct a resurvey so that the reserva- 
tion might be located and described upon the offi- 
cial plats. In pursuance of these instructions the 
sur^-eyor general caused a resurvey of the quarry 



139 

to be made, and tlie premises as resurve.yed ai-e 
substantially the same as the lines of the original 
survey. (H. R. Doc. 535, 56th Cong., 1st sess., 
p. 31; United States v. Carpenter, 111 U. S., 347.;) 
After the survey of the reservation as public 
lands, one August Cluensen, on July 15, 1871, lo- 
cated a quarter section of Louisiana College scrip, 
and on May 15, 1871, a patent was issued to him 
for said lands. All of his rights thus acquired 
were subsequently transferred to one Herbert M. 
Carpenter. Upon a suit in equity instituted by 
the Government the joatent was declared invalid. 
(United States v. Carpenter, 111 U. S., 317.) 

THE YANKTON AGREEMENT OF DECEISIBER 31, 1802. 

The agreement of December 31, 1892, with the 
Yankton Sioux was ratified by section 12 of the 
act of August 15, 1894 (28 Stat., 286, 314, 317, 
318, 319), in which the agreement is set out in 
extenso, Article XVI, of which reads: 

If the Government of the United States 
questions the ownership of the Pipestone 
Reservation by the Yankton Tribe of Sioux 
Indians, under the treaty of April 19, 1858, 
including the fee to the land, as well as the 
right to work the quarries, the Secretary 
of the Interior shall as speedily as possible 
refer the matter to the Sui3reme Court of 
the United States, to be decided by that tri- 
bunal. And the United States shall fur- 
nish, without cost to the Yankton Indians, 
at least one competent attorney to repre- 



140 

sent the intei^ests of the tribe before the 
court. 

If the Secretary of the Interior shall 
not, within one year after ratification 
of this agreement by Congress, refer the 
question of the ownership of the Pipe- 
stone Reservation to the Supreme Court, 
as provided for above, such failure upon 
his part shall be construed as and shall be 
a waiver by the United States of all rights 
to the ownership of the Pipestone Reserva- 
tion, and the same shall thereafter be 
solely the property of the Yankton Tribe 
of the Sioux Indians, including the fee, to 
the land. 

The question of what interest, if any, the Yank- 
ton Indians possessed in the Pipestone Quarry 
which was to be referred to the Supreme Court 
was inserted in the agreement of 1892 in conse- 
quence of speeches made to the commission, which 
negotiated the treaty, by members of the tribe, 
and it was thought best by the commission to 
settle the controversy and satisfy the Indians in 
this way. The question as to procedure was re- 
ferred to the Attorney General, who informed the 
Secretary of the Interior that it was a practical 
impossibility to refer the question to the Supreme 
Court. (Rec, pp. 17, 18.) 

The ignorance of the commission in adopting 
this method of settlement was on a par mth that 
of the Yanktons in construing their right to pro- 
cure stones for their pipes as conveying to them a 



141 

fee simple title to the Pipestone Quarry and the 
land on which it stands. 

THE YAXKTOX AGREEMENT OF 1899. 

The act of June 7, 1897 (30 Stat., 87), contained 
a clause that — 

The Secretary of the Interior is directed 
to negotiate, through an Indian inspector, 
with the Yankton Tribe of Indians of 
South Dakota, for the purchase of a parcel 
of land near Pipestone, Minn., on which is 
located an Indian industrial school. 

In pursuance of the above act the Secretary of 
the Interior was directed to negotiate vrith the 
Yankton Indians for the cession of all their rights 
to the Pipestone Quarry. Accordingly Inspector 
McLaughlin entered into an agreement with them 
for their interest in the Pipestone Quarry for a 
consideration of $100,000, and on October 9, 1899, 
transmitted the agreement and the proceedings of 
the council to the Commissioner of Indian Aifairs. 
The agreement was afterwards transmitted to Con- 
gress by the Department of tlie Interior on March 
24, 1900, and the agreement and council proceed- 
ings were printed as House of Representatives 
Document No. 535, Fifty-fifth Congress, first ses- 
sion. 

On March 3, 1903, Senator Quarles, afterwards 
United States circuit judge (from the Senate 
Conunittee on Indian Affairs), submitted an ad- 
verse report on Senate bill 1472, ratifying the 
agreement. The report, after quoting Article VIII 



142 

of the treaty of April 19, 1858, said that the only 
title which the Yanktons possessed to the Pipe- 
stone Quarry was in the nature of an easement; 
and, referring to the failure of the Secretary of 
the Interior to submit the question of title to the 
Supreme Court, said that such a course was a 
legal and practical impossibility, as it had no 
original jurisdiction to construe the treaty (Senate 
Rept. No. 3316, 57th Cong., 2d sess. Vol. Docs, 
filed by defendants June 13, 1912, p. 178). After 
this report no further action was taken on the 
bill. (Rec, p. 18.) 

ARGUMENT. 
THE INDIAN TITLE. 

We have shown by overwhelming and uncontra- 
dicted testimony tliat the Mississippi Sioux, com- 
posed of the Sisseton, Wahpeton, Medawakanton, 
and Wahpekoota Bands, vx'ere in exclusive and im- 
disputed possession from time immemorial of the 
country on which the Pipestone Quarry is situ- 
ated, and that the extreme eastern boundary of 
the Yankton country for the same ])criod was the 
Big Sioux River, wliich runs about 14 miles west 
of the Pipestone Quarry. The Mississippi Sioux 
conveyed their title by possession to the United 
States by the treaties of 1851. 

The Supreme Court has always held that the 
fee to Indian tribal lands is in the United States, 
but that " the right of the Indians to their occu- 
pancy is as sacred as that of the United States to 



143 

the fee, but it is only a right of occupancy. The 
possession, when abandoned by the Indians, at- 
taches itself to the fee without further grant." 
(United States v. Cook, 19 Wall. 591; Beecher v. 
WetherJjij, 95 U. S. 517, 525, 526.) 

THE INTEREST OF THE YANKTOXS IN THE PIPESTONE 
QUARRY UNDER ARTICLE 8 OF THE AGREEMENT OF 
1858. 

When the Government gave the Yankton 
Indians the right " to procure stones for their 
pipes " from the Pipestone Quarry, it had a fee 
simple title and undisputed possession of the 
quariy. In order to procure the necessary signa- 
tures to the treaty of 1858 with the Yanktons, it 
gave them the right to use the quarry for that 
purpose and for that purpose only. This was a 
right which the Indian tribes sufficiently near had 
exercised from time immemorial until they were 
stopped by the Sioux at the instigation of the 
whites about 1830, after which all of the tribes or 
bands of the Sioux still continued to visit the 
Pipestone Quarry for the purpose of procuring 
stones for pipes and ornaments, and continued to 
do so even after the possessory title passed to the 
United States in 1851. The question of the extent 
of the interest of the Yankton Indians in tlie 
Pipestone Quarry came up when the Secretary 
of the Interior established Indian schools on the 
Pipestone Reservation under section 2 of the act 
of February 16, 1891 (26 Stat, 764), which pro- 



144 

vided '* that the Secretaiy of the Tnterior may 
select any part or portion of nonmineral public 
domain of the United States in either of the said 
States (Wisconsin, Michigan, or Minnesota) 
which he may deem necessary and equitable, not 
exceeding 40 acres, etc." The Yankton Indians 
claimed comp'ensation for the lands occupied by 
the school buildings, and the Assistant Attorney 
General for the Interior Department on February 
17, J891, rendered an opinion, in which he held 
that the Yanktons were not entitled to compensa- 
tion, because their right to take stone for pipes 
was not infringed upon, and that they did not 
suffer any damage from the construction of the 
buildings. (Rep. of Commr. of Indian Affairs, 
1892, p. 60.) 

The language of article 8 of the treaty of 1858 
referred to above (ante, jd. 137) is so clear that it 
is difficult to see how any other construction could 
be placed upon it. This was also the construc- 
tion placed upon it by the Senate Committee on 
Indian Affairs in the report submitted by Senator 
Quarles, a very able lawyer and afterwards a 
United States circuit judge (ante, p. 18). 

The Supreme Court in the case of United States 
V. Carpenter (111 U. S., 347) held that it was 
entirely optional with the United States as to how 
much of the quarry should be retained by the 
United States to enable the Yankton Indians to 
procure stone for their pipes. The only thing de- 
cided was that the officers of the Government 



145 

could not deprive the Indians of the right to 
quarry stone for that purpose by disposing of the 
land to private parties. 

The Supreme Court in the case of the United 
States V. The Mille Lac CJiippewas (229 U. S., 
498, 500), said: 

The jurisdictional act makes no admis- 
sion of liability, or of any ground of lia- 
bility, on the part of the Government, but 
merely provides a forum for the adjudica- 
tion of the claim according to applicable 
legal principles. Nor does it contemplate 
that recovery ma.y be founded upon any 
merely moral obligation not expressed in 
pertinent treaties or statutes, or upon any 
interpretation of either that fails to give 
effect to their plain import, because of any 
sux^posed injustice to the Indians. United 
States V. Oid Settlers, 148 U. S., 427, 469; 
United States v. Choctaw, etc., Nations, 
179 U. S., 494, 735; Sac and Fox Indians, 
220 U. S., 481, 489. 

WHAT ADDTTIOXAL IXTEREST, IF AXY, DID THE YANK- 
TOXS ACQUIRE JX THE PIPESTOXE QUARRY BY 
REASOX OF THE AGREEMEXT OF DECEMBER 31, 
1892. 

Article XVI of the agreement of December 31, 
1892, quoted above (ante, pp. 139, 140), stipulated 
that if the Government of the United States ques- 
tions the OAvnership of the Pipestone Reservation, 
the Secretary of the Interior shall, as speedily as 
possible, refer the matter to the Supreme Court 



146 

of tlie United States to be decided by that court, 
and if the United States failed to do so within 
one year after the ratification of the agreement 
the reservation should be the sole property of the 
Yanktons. 

The question was not submitted to the Supreme 
Court for the reason that the Department of 
Justice advised the Secretary of the Interior that 
it was impracticable to do so. 

The adverse report of the Senate Committee on 
Indian Affairs on bill (S. 1472, 57th Cong., 2d 
sess.), ratifying the agreement of October 2, 1899, 
to pay the Yanktons $100,000, concluded vdth tlie 
following statement : 

We understand the law to be that where 
a forfeiture is hinged upon a condition im- 
possible of x^erformance the convention fails 
to that extent and no forfeiture can he in- 
sisted upon. To hold otherwise in this case 
would be subversive of justice, because 
there was in fact no such question or dis- 
pute regarding the title of the tribe as 
should have ever been submitted to the 
court at all. It is practically conceded by 
every lawyer upon the committee that the 
only title that the tribe liad was in tlie 
nature of an easement, and that the Su- 
preme Court must have so decided if the 
proposition could have been there sub- 
mitted. To contend, therefore, that the 
naked failure to comply with this condition 
should result in forfeiture of the Govern- 
ment's title is carrying the doctrine of for- 



147 

feiture to the verge of absurdity. Apply- 
ing to this question the broad principles of 
justice which ought to prevail, your com- 
mittee feels constrained to recommend that 
the said agreement be reported adversely. 
(See small volume of documents filed by 
defendants June 13, 1912, p. 179.) 
The Supreme Court in the case of Muskrat v. 
The United States (219, U. S., 346), held that it 
was beyond the power of Congress to refer an act 
to that court for construction; that from its 
earliest history "the court had consistently de- 
clined to exercise any powers other than those 
which are strictly judicial in their nature; that 
under the Constitution of the United States the 
judicial power of the court was limited to cases and 
controversies in which there were present or pos- 
sible adverse parties whose contentions are sub- 
mitted to the court for adjudication. The Su- 
preme Court even went so far as to hold that 
this court has no judisdiction of such a question 
where there is a right of appeal to it. 

It is clear, therefore, that the law prohibited 
the Secretary of the Interior from referring the 
question propounded by Article XVI of the agree- 
ment of December 31, 1892, to the Supreme Court 
at the time the agreement was made. The agree- 
ment as to that question, therefore, was null 
and void. (Knapp v. The United States, No. 

33071, 52 C. Cls., , and cases cited; Bailey 

V. De Crespigny, L. R., 4 Q. B., 180; Slipper v. 



148 

Totterham d Hampstead Junction K. Co., L. R. 
Eq., 112; Scovill v. McMalion, 62 Conn., 378; 
Heine v. Meyer, 61 N. Y., 171.) 

CONCLUSION. 

It is therefore clear that the only title or in- 
terest that the Yankton Indians have in the Pipe- 
stone Quarry is the privilege of procuring stones 
for their pipes, and as long as the Government 
does not interfere with them in the exercise of 
that right they have no cause of complaint against 
the United States. 

Respectfully, 

Geo. M. Anderson, 

Attorney for the Defendants. 
O 



